Hurtado v. Tucker

• Decision Date: 07 February 2001
• Docket Number: No. 00-1609,00-1609
• Citation: 2001 WL 290343,245 F.3d 7
• Parties: (1st Cir. 2001) BERNARDO HURTADO, Petitioner, Appellee, v. JOHN TUCKER, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

245 F.3d 7 (1st Cir. 2001)

BERNARDO HURTADO, Petitioner, Appellee, v. JOHN TUCKER, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellant.

No. 00-1609

United States Court of Appeals For the First Circuit

Heard February 7, 2001

Decided March 29, 2001

[Copyrighted Material Omitted] Annette C. Benedetto, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellant.

Charles S. Nierman, with whom Eugene Patrick McCann and Manzi and McCann, were on brief, for appellee.

Before Selya, Lynch, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

A writ of habeas corpus was granted by the district court to Bernardo Hurtado, who had been convicted of various state drug crimes. The district court determined that the state appellate courts erred in concluding that the evidence at trial was sufficient to support Hurtado's conviction, and that, under the Antiterrorism and Effective Death Penalty Act ("AEDPA"),¹ the error was such as to qualify as either "contrary to, or [ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (West Supp. 2000). See Hurtado v. Tucker, 90 F. Supp. 2d 118 (D. Mass. 2000) ("Hurtado"). We reverse and clarify the limits on federal habeas review.

I.

Bernardo Hurtado was convicted in Massachusetts in 1993 of trafficking in cocaine and possessing heroin with intent to distribute.² Hurtado's conviction was affirmed on appeal to the Massachusetts Appeals Court in 1996, see Commonwealth v. Hurtado, No. 94-P-1821, 660 N.E.2d 395 (Mass. App. Ct. Jan. 25, 1996), and his request for further review was denied by the Massachusetts Supreme Judicial Court later that year, seeaCommonwealth v. Hurtado, 663 N.E.2d 575 (Mass. 1996).

Petitioner then sought federal habeas relief pursuant to 28 U.S.C. § 2254 (West Supp. 2000). On May 22, 1998, the magistrate judge filed a report and recommendation recommending that relief be granted.³ On February 29, 2000, the district court adopted the report and issued the writ. Hurtado, 90 F. Supp. 2d at 119-20. This appeal by the Commonwealth followed.

II.

We summarize the presumptively-correct⁴ factual determinations of the state court about the evidence presented at Hurtado's criminal trial. On January 24, 1991, the police executed two search warrants for 77 Newbury Street in Lawrence. The warrants had been obtained after six weeks of surveillance and four controlled drug buys there by a confidential informant. The building is a three-story structure with three apartments on the left and right-hand sides. An interior stairway on each side connects the three floors, but the two sides of the building are not accessible to each other from inside the building. All apartments on the left-hand side and the third-floor apartment on the right-hand side were then vacant.

Hurtado and his wife, Lydia Nunez, lived with her six children, including her son Roberto Nunez, in the first-floor apartment on the right-hand side. Hurtado and Nunez had a daughter together.⁵

As the police entered the right side of the building, they heard shouts of "policia" and people running above them. Two officers ran to the second floor where they found Lydia and Roberto Nunez coming down from the third floor. Roberto Nunez had over $6,100 in cash on him. An unidentified male fled to the third floor and then escaped. Both Lydia and Roberto Nunez were arrested.

In the third-floor apartment, police found in plain view drug distribution paraphernalia and various drugs. No readable fingerprints were found there. Nothing was found in the second-floor apartment.

Hurtado was alone in the first-floor apartment at the time of the search. He emerged as the police entered. An officer announced that he had a warrant to search the apartment and escorted Hurtado back into the apartment. Hurtado sat at the kitchen table while the officers conducted their search. The officers described Hurtado as "cooperative." Upon request, Hurtado gave the officers his driver's license and his car registrations. The driver's license was expired and showed Hurtado's address at 77 Newbury Street. Hurtado, who was unemployed at the time, had registrations for two cars, a Lincoln Continental and an Audi. Both were registered to the 77 Newbury Street address. One of those registrations was dated January 14, 1991, just ten days before the raid. No drugs, drug paraphernalia, or any items suggestive of drug dealing were found on Hurtado.

The first-floor apartment was a different matter. The police found small empty plastic bags in a cup in the kitchen hutch, of the type commonly used to distribute 0.25 grams of cocaine. Also in the hutch was a small, white plastic bag of the type typically used for the distribution of 0.05 grams of heroin. It bore the stamp of a witch on it. A false plant pot in the kitchen contained three blue bags of the type often used for the distribution of 0.05 grams of heroin, which also bore witch stamps on them. Analysis indicated that the blue bags found on the first floor contained a residue of heroin.⁶ In addition, on top of the dresser in the master bedroom, the police found a piece of paper containing drug notations plus some gold jewelry and a jewelry box. They also found two expired passports belonging to Hurtado in that bedroom.

During the weeks of surveillance, police saw Hurtado outside the building "almost all the time." His car was also seen parked in front of the building. No one testified that they ever saw Hurtado participate in any of the drug transactions. The police, through an informant, made controlled buys at the building from sellers described as Hispanic men in their early twenties and from Lydia Nunez. Hurtado was approximately thirty-six years old at the time of his arrest.

III.

A. Decision of the Massachusetts Appeals Court

In his state appeal, Hurtado argued that there was insufficient evidence to support his conviction on the drug charges.⁷ The Appeals Court considered whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that Hurtado was guilty on each element of the offenses beyond a reasonable doubt. See, e.g., Commonwealth v. Latimore, 393 N.E.2d 370, 374 (Mass. 1979) (applying test articulated by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979)).⁸ The court concluded that there was sufficient evidence to support Hurtado's conviction as a principal under the theory of constructive possession of a controlled substance.⁹

In order to sustain a conviction under a theory of constructive possession in Massachusetts, the defendant must have known of the presence of the controlled substance and had "the ability and intention to exercise dominion and control over it." Commonwealth v. Cruz, 614 N.E.2d 702, 704 (Mass. App. Ct. 1993). The "elements of control and power or knowledge, coupled with the ability and intention to exercise dominion and control, may be inferred from circumstantial evidence . . . ." Commonwealth v. Brown, 609 N.E.2d 100, 102 (Mass. App. Ct. 1993). "While presence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] . . . presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Handy, 573 N.E.2d 1006, 1009 (Mass. App. Ct. 1991).

The Appeals Court's determination of sufficient evidence was based on four findings. First, the court found that the jury could have reasonably concluded that Hurtado resided in the first-floor apartment with Lydia Nunez based on the following facts: Hurtado's expired passports were found in the bedroom with those of Nunez; Hurtado was carrying an expired driver's license and current car registrations listing his address as 77 Newbury Street; and Hurtado was seen "almost all the time" during the surveillance of the apartment.

Second, the court found that the jury reasonably could have concluded that the third-floor apartment was being used as a drug stash area. This conclusion was warranted in light of the matching bags and stamps found on the first and third floors and the drug note in the first-floor apartment referring to quantities of drugs found on the third floor.

Third, the court determined that the jury could have reasonably inferred that Hurtado knew of the heroin and cocaine present in the third-floor apartment based on the fact that police had observed him at 77 Newbury Street while drug transactions were occurring, that Hurtado's passports were in the same bedroom as the note making reference to quantities of drugs found on the third floor, and that the first-floor kitchen contained bags typically used in drug distribution and identical to those found on the third floor.

Fourth, the court concluded that there was sufficient evidence that Hurtado had the ability and intention to exercise control over the drugs found in the third-floor apartment because he was present in the locked first-floor apartment alone, the packaging found in the first-floor apartment was similar to that found in the third-floor apartment, the drug note found in the bedroom by his personal papers mentioned quantities contained on the third floor, and Hurtado had access to the third floor via the staircase.

The Supreme Judicial Court denied further appellate review.

B. Magistrate Judge's Report and Recommendation

Hurtado sought federal habeas corpus relief in the district court. In a recommendation and report issued on May 22, 1998, the magistrate judge recommended that relief be granted based on Hurtado's insufficiency of the evidence claim. SeeaHurtado, 90 F. Supp. 2d at 120-35.¹⁰ The magistrate judge acknowledged that, in the wake of the AEDPA, his task was to determine whether the Massachusetts Appeals Court's decision was "contrary to, or involved an...