Kater v. Maloney

• Decision Date: 14 August 2006
• Docket Number: No. 05-1640.,05-1640.
• Citation: 459 F.3d 56
• Parties: James Michael KATER, Petitioner, Appellant, v. Michael T. MALONEY, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

459 F.3d 56

James Michael KATER, Petitioner, Appellant, v. Michael T. MALONEY, Respondent, Appellee.

No. 05-1640.

United States Court of Appeals, First Circuit.

Heard June 6, 2006.

Decided August 14, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph F. Krowski, with whom Law Office of Joseph F. Krowski was on brief, for appellant.

Susanne G. Reardon, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Before SELYA, LYNCH and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

James Michael Kater, who is serving a life sentence for murder and kidnapping, appeals from the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. Our review is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Kater's habeas petition raises, inter alia, a due process claim based on the introduction of a prior bad act for the purpose of establishing identity, an unusual voir dire claim, and a claim under the Confrontation Clause related to the introduction of testimony by previously hypnotized witnesses. We reject Kater's claims, affirm the district court's denial of the petition, and resolve one issue of first impression for this court.

We address Kater's assumption that in a federal habeas proceeding on de novo review of a state court's judgment under Fortini v. Murphy, 257 F.3d 39 (1st Cir.2001), we may apply a new rule of law, which was not clearly established by existing precedent at the time the state conviction became final. Our circuit law has not yet addressed this aftermath issue to Fortini, which held that, post-AEDPA, preserved federal constitutional claims on habeas would be reviewed de novo, when such claims were not "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); Fortini, 257 F.3d at 47. While we consider such claims "de novo," that does not mean we review those claims as an original matter, as if the claims were raised on direct appeal. Rather, the claims of habeas petitioners, even on de novo review under Fortini, continue to be limited by the principles laid out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, which generally bar claims that require the application or announcement of "new rules" of law.

I.

This case has an over twenty-year history in the courts of Massachusetts. We begin with a thumbnail sketch of that history to set the stage.

Kater was indicted in 1978 in Massachusetts for the kidnapping and murder of a fifteen-year-old girl, Mary Lou Arruda. He was convicted in 1979, but the Massachusetts Supreme Judicial Court (SJC) reversed the conviction because certain hypnotically aided testimony had been introduced at trial. Commonwealth v. Kater (Kater I), 388 Mass. 519, 447 N.E.2d 1190 (1983). The SJC ordered the trial court on remand to hold a hearing and to admit only such testimony as was based on pre-hypnotic memories. Commonwealth v. Kater (Kater II), 394 Mass. 531, 476 N.E.2d 593 (1985). After two more trials ended inconclusively,¹ Kater was tried for a fourth time.² Kater was convicted after his fourth trial, in 1996; this conviction was upheld by the SJC. Commonwealth v. Kater (Kater VII), 432 Mass. 404, 734 N.E.2d 1164 (2000). It is the affirmance of his conviction at his fourth trial which is at issue here.

Before the fourth trial began, the state trial court ordered that the testimony of previously hypnotized witnesses be limited to facts that had been documented in the record before the witnesses had been hypnotized. Id. at 1177. This was more favorable to Kater than the SJC's directive that pre-hypnotic testimony be separated from hypnotically aided testimony. Id. The trial court also ruled, at motion in limine before trial, that the prosecution could introduce evidence of Kater's state conviction for a similar kidnapping, for the purpose of establishing Kater's identity.³ Id. at 1172, 1175. The SJC affirmed this ruling. Id. at 1176.

At jury selection, on Kater's motion and with the Commonwealth's agreement, the state trial court asked potential jurors individually a second round of questions. After describing Kater's prior conviction, the judge asked whether knowledge of that conviction would affect the jurors' ability to accept and understand the presumption of innocence and the limitation on the use of prior bad act evidence to the issue of identification. Id. Seven of fifteen jurors were struck based on their responses to these questions.

The trial court later decided that voir dire on the prior bad acts was inappropriate, and excused the previously selected jurors. Id. It did so for two reasons. First, it found that "if evidence of other crimes were admitted, it would not be extraneous within the meaning of [Mass. Gen. Laws ch. 234, § 28], and voir dire would not be authorized." Id. The court referred to state law "provid[ing] that a trial judge must, for the purpose of determining whether a juror stands indifferent in a case, conduct an individual voir dire of each prospective juror if it appears that a substantial risk exists that an extraneous issue might affect the outcome of the case." Id. (citing Mass. Gen. Laws ch. 234, § 28). The SJC said that, under Massachusetts law, "[a]n extraneous issue is one that goes beyond the record and raises a serious question of possible prejudice." Id. at 1175. Second, the trial court found that "if the evidence [of prior bad acts] were ultimately not admitted at trial, the questions would have then contaminated the jury." Id. at 1174. Jury selection then began anew without any inquiry as to Kater's prior conviction.

The SJC affirmed the reasoning of the state trial court on the voir dire issue on state law grounds. Id. at 1174-75 ("Kater's obstacle is that the issue of his prior similar crime was not extraneous. . . . Here, the issue of Kater's prior similar crime did not lie beyond the record. Evidence of the prior similar crime was fully relevant and probative on the issue of Kater's identity as the perpetrator.").

II.

We briefly recount the facts as found by the state court, which are detailed in Kater VII, 734 N.E.2d at 1170-72. Arruda disappeared in September 1978 while riding a bike near her home in Raynham, Massachusetts. Her bike was found the same day; nearby was a Benson & Hedges cigarette and a car tire track with an acceleration mark and an abnormal tread wear pattern. Two months later, in November 1978, Arruda's clothed body was found tied to a tree. A pathologist testified that Arruda had been tied to the tree while conscious, but that she lost consciousness and that the weight of Arruda's head against the restraint around her neck strangled her. Id. at 1170.

Around the time Arruda disappeared, five individuals saw a green car with a black or silver stripe speeding through the neighborhood where Arruda had been abducted. Id. Four of these witnesses were hypnotized during the course of the investigation into Arruda's disappearance. Kater I, 447 N.E.2d at 1194. At trial, the five witnesses testified that Kater's car was similar in color, size, and markings to the car they had seen on the day of Arruda's disappearance. Kater VII, 734 N.E.2d at 1171. One person described the driver of the car as a white male with dark curly hair and dark-rimmed glasses. Police developed a composite sketch of the driver based on eyewitness accounts. Id. at 1170.

While Arruda was still missing, Kater was interviewed by the police. The police noted that Kater smoked Benson & Hedges cigarettes, and that his appearance matched both the composite sketch and the description of the driver given by one witness. Kater allowed the police to search his car, a bright green Opel with a black racing stripe. The right front tire tread of the car had a unusual wear pattern consistent with the tire track found near Arruda's bicycle. In the car the police found two cartons of Benson & Hedges cigarettes and two pairs of dark-rimmed glasses. In the trunk of the car, under some luggage, the police found two newspapers, each open to articles about Arruda's disappearance. Kater made a statement to the police as to his whereabouts at the time of Arruda's disappearance, but the SJC found Kater's alibi to have been inaccurate. Id. at 1171.

Kater, in 1969, had pled guilty to a crime which the SJC stated was "strikingly similar" to the one perpetrated against Arruda. Id. at 1176. Evidence of this prior conviction was introduced at Kater's fourth trial for the purpose of establishing Kater's identity as the perpetrator of the crime against Arruda. Kater had abducted a thirteen-year-old girl, Jacalyn Bussiere, who was walking her bicycle on a secluded street. He forced her into his car and drove her to a wooded area. Kater hit Bussiere over the head and tried to force her face into a stream. After Bussiere fought back, Kater forced Bussiere into the car again and drove her deeper into the woods, where he tied her hands, ankles, torso and neck against a tree; this was similar to how Arruda's body had been found tied. Bussiere lost consciousness for some time, but eventually managed to free herself and report the crime to the police. Id. She identified Kater as her assailant. Id. at 1172 n. 3.

Kater was convicted of the kidnapping and murder of Arruda, and sentenced to life imprisonment without the possibility of parole. Id. at 1170.

III.

It is a fundamental principle of the law of federal habeas corpus in non-death-penalty cases that no habeas claim is stated as to state court criminal convictions unless the alleged errors are violations of the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also 28 U.S.C. §§ 2241(c)(3), 2254(a). Errors based on violations of state law are not within the reach of federal habeas petitions unless there is a federal constitutional claim...