Gunter v. Maloney

• Decision Date: 29 April 2002
• Docket Number: No. 01-2353.,01-2353.
• Parties: Paul GUNTER, Petitioner, Appellee, v. Michael T. MALONEY, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 74

291 F.3d 74

Paul GUNTER, Petitioner, Appellee, v. Michael T. MALONEY, Respondent, Appellant.

No. 01-2353.

United States Court of Appeals, First Circuit.

Heard March 5, 2002.

Decided April 29, 2002.

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James M. Doyle with whom Carney & Bassil was on brief for appellee.

William J. Meade, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for appellant.

Before LYNCH, Circuit Judge, and BOWNES and MAGILL,^* Senior Circuit Judges.

LYNCH, Circuit Judge.

Paul Gunter, convicted in 1996 of felony murder and other charges in Massachusetts and sentenced to life imprisonment, was granted a writ of habeas corpus by the federal district court on August 23, 2001. We reverse, vacate the writ, and dismiss the petition.

I.

The facts underlying Gunter's conviction are set out in detail in the opinion of the Massachusetts Supreme Judicial Court (SJC). Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515, 518-19 (1998). The factual findings of the state court are presumed to be correct under 28 U.S.C. § 2254(e)(1). See Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir.2001). We describe the facts briefly.

Gunter was part of a group that sold illegal drugs from a Boston apartment. On March 21, 1991, three men stole drugs from the apartment. Gunter and three of his associates in crime — Corey "Floyd" Selby, Mark Edwards, and Larricia McConnico — drove to another apartment where they, incorrectly, thought the thieves might be. Gunter waited outside in the car and knew his confreres intended to kill or hurt the thieves. Gunter's three colleagues entered the apartment and held at gunpoint the four innocent people inside — Anthony Madden, Annette Gilbert, Gwendolyn McKenzie, and Jack Berry Jr.—while Gunter waited in the car. Before they left the apartment, Selby shot and killed Berry. Thus Madden, Gilbert, and McKenzie were bystanders to the murder of Berry. Selby, Edwards, and McConnico then ran back to the car and, with Gunter, drove away from the murder scene.

Gunter was convicted as a joint venturer of murder in the first degree on a felony murder theory. The underlying felony charged in the indictment was assault with a dangerous weapon in a dwelling house. Mass. Gen. Laws ch. 265, § 18A. The prosecution theory, proven at trial, was that Berry had been assaulted and that assault was the felony to support the felony murder. When the case was on appeal to the SJC, that court on its own raised the issue of

[w]hether, in light of the defendant's conviction as a joint venturer of murder in the first degree on a theory of felony-murder, where the underlying felony was armed assault in a dwelling with intent to commit a felony the felony is sufficiently "independent" of the murder itself to justify the first degree murder conviction,

or whether it had merged with the killing. Gunter, 692 N.E.2d at 524 (citation omitted). Because Gunter did not raise this merger doctrine issue himself at trial or on appeal, the issue was procedurally defaulted, and the SJC subjected it to discretionary miscarriage of justice review only, as it is empowered to do under Mass. Gen. Laws ch. 278, § 33E. The SJC asked for briefing on the issue. Only then did petitioner make the merger doctrine argument, which the SJC had raised on its own, and argue that letting the felony murder conviction stand would deprive him of his rights to a fair trial and due process as guaranteed by the United States Constitution.

On that miscarriage of justice review, the SJC decided that under the merger doctrine, the theory of the prosecution, which used the assault on Berry as the underlying felony, was unsound because the underlying felony of assault on Berry merged with the killing of Berry. Nonetheless the SJC did not reverse because it found Gunter, on the evidence at trial, was properly convicted under a different felony murder theory, although the alternate theory was not the theory that the prosecution actually used at trial. The alternate theory was that the felony of assault on the bystanders was the underlying felony to support the felony murder conviction. The SJC reasoned that based on the "ample evidence presented by the Commonwealth," the jury could have found Gunter guilty beyond a reasonable doubt of the independent assaults committed on Gilbert, Madden, and McKenzie, thus providing the felony to underlie the felony murder conviction. Id. at 526-27. The SJC acknowledged that the assaults on the bystanders were not specified in the indictment, but found that fact irrelevant because "the statutory form of indictment is sufficient to charge murder by whatever means it may have been committed, including felony-murder." Id. at 526. The SJC "conclude[d] that there was no substantial likelihood of a miscarriage of justice in the conviction of Gunter as a joint venturer." Id. at 527. Accordingly, the SJC allowed Gunter's murder conviction to stand, although it did vacate his conviction for armed assault in a dwelling place as merged into the murder conviction.

On April 28, 1998, Gunter petitioned the SJC for rehearing under Mass.R.App.P. 27. He based this petition in part on a newly made ineffective assistance of counsel claim, arguing that trial counsel should have requested a specific jury instruction "to ensure that the jury's verdict was unanimous as to which specific acts constituted the underlying assaults." He also argued that because the underlying felony charged in the indictment could not serve as an underlying felony in a felony murder conviction, his conviction denied him due process of law. The SJC, in its discretion, denied the petition for rehearing on May 22, 1998, without opinion. Gunter never filed a motion for new trial, the usual vehicle to raise an ineffective assistance claim.

Gunter's petition for a writ of habeas corpus, under 28 U.S.C. § 2254, was filed pro se, and consisted of twelve separate grounds. Ground eleven stated that his attorney's "failure to argue that the felony murder doctrine, as applied to the facts of this case, violated petitioner's federal constitutional rights ... amounted to ineffective assistance of counsel." The district court initially dismissed the ineffective assistance claim because of Gunter's failure to exhaust state remedies, but then reversed itself, accepting appointed counsel's argument that the ground had fairly been presented to the state court in the petition for rehearing. The district court granted the writ based on this ground. Gunter v. Maloney, No. 99-11125-RWZ, slip op. at 6-13 (D.Mass. Aug. 23, 2001). The Commonwealth now appeals that decision.

II.

The pertinent claim in Gunter's pro se petition for habeas corpus is that there was ineffective assistance of counsel in his attorney's failure to present the merger doctrine argument. That argument was that Gunter could not be convicted for Berry's murder because the underlying felony and the homicide had merged, leaving no underlying felony for a felony murder conviction. It is unclear from Gunter's petition whether his claim is that counsel should have made the argument at trial or on appeal to the SJC. When counsel for Gunter was appointed in the federal habeas case, counsel elaborated on this theme, arguing that trial counsel should not have "permitted the jurors to remain in complete ignorance of the fact[ ] that ... the `Berry-assault' theory was legally inadequate," and that this violated defendant's right to counsel.

The district judge held that the ineffective assistance claim had been presented to the state court at what it found was the first possible opportunity, on a petition for rehearing to the SJC, and that the claim was therefore properly exhausted. In the rest of the opinion, the district court largely ignored the ineffective assistance of counsel issue. Rather, the court went directly to whether the argument that state trial counsel should have presented — the merger doctrine argument — was procedurally defaulted. The district court found that the merger doctrine argument was not procedurally defaulted and that the SJC's decision was "contrary to clearly established Federal law" because the jury did not perform any factfinding as to the bystander assaults that had not merged with the murder, and that the SJC had substituted as the underlying felony.

It is thus unclear what role the ineffective assistance claim was meant to play in the habeas petition: as a freestanding claim or simply to provide cause to excuse the procedural default of failing to raise the merger doctrine argument. We consider the "cause" question later in the opinion.

A. Procedural Default of Merger Doctrine Argument

A finding by a state court that a defendant procedurally defaulted a claim bars federal habeas corpus relief on that claim unless that defendant as a petitioner shows either cause for the default and prejudice from the claimed violation of federal law, or that a fundamental miscarriage of justice will result if the claim is not considered. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Here the SJC held that Gunter had procedurally defaulted the merger doctrine argument, that is, the argument that he could not be convicted for felony murder if the underlying felony (armed assault of Jack Berry) was not "separate from the acts of personal violence which constitute a necessary part of the homicide itself." Gunter, 692 N.E.2d at 525, 526-27. Gunter could have made this argument even before the trial began, but he did not bring this argument to light on his own initiative in all his proceedings before the Massachusetts state courts. The SJC specifically noted this, stating that "Gunter himself did not raise this issue." Id. at 526.

Despite the procedural default and to petitioner's potential benefit, the SJC acted under its § 33E power, Mass. Gen. Laws ch. 278, § 33E, by asking the procedurally defaulted question itself, and requesting briefing...