O'Laughlin v. O'Brien

• Decision Date: 07 August 2009
• Docket Number: No. 08-1010.,08-1010.
• Citation: 577 F.3d 1
• Parties: Michael O'LAUGHLIN, Petitioner, Appellant, v. Steven O'BRIEN, Superintendent, Old Colony Correctional Center, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

577 F.3d 1

Michael O'LAUGHLIN, Petitioner, Appellant, v. Steven O'BRIEN, Superintendent, Old Colony Correctional Center, Respondent, Appellee.

No. 08-1010.

United States Court of Appeals, First Circuit.

Heard: September 12, 2008.

Decided: August 7, 2009.

Kenneth I. Seiger, Brookline Village, MA, for Petitioner, Appellant.

Scott A. Katz, MA Attorney General's Office, Boston, MA, for Respondent, Appellee.

Before LYNCH, Chief Judge, TORRUELLA, BALDOCK,^* BOUDIN, LIPEZ and HOWARD, Circuit Judges.

ORDER OF COURT

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.

LYNCH, Chief Judge, dissenting from the denial of en banc review.

Through AEDPA, Congress has narrowly limited federal court review of state criminal convictions. Specifically, federal habeas relief is now unavailable to state prisoners unless the state court adjudication of the prisoner's claim "resulted in a decision that was contrary to, or involved 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).

Here, a Massachusetts jury convicted petitioner Michael O'Laughlin of several charges relating to the gruesome nighttime beating of his neighbor, Annmarie Kotowski, which left her near death. The Supreme Judicial Court of Massachusetts ("SJC") unanimously upheld that conviction, see Commonwealth v. O'Laughlin (O'Laughlin II), 446 Mass. 188, 843 N.E.2d 617 (Mass.2006), reversing the intermediate state appellate court's holding that the evidence was insufficient, see Commonwealth v. O'Laughlin (O'Laughlin I), 63 Mass.App.Ct. 805, 830 N.E.2d 222 (Mass.App.Ct.2005). The federal district court denied O'Laughlin's habeas petition.

Nonetheless, a panel of this court on federal habeas review found that the evidence against O'Laughlin was insufficient to support the conviction and held that the SJC's contrary determination was an unreasonable application of clearly established federal law. See O'Laughlin v. O'Brien (O'Laughlin III), 568 F.3d 287 (1st Cir.2009).

To reach this result, the panel opinion applied a sufficiency standard that is materially different from the Supreme Court's clearly established law under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and exceeded its narrowly defined power to review state court criminal convictions under AEDPA. Because the sufficiency standard applied by the panel has consequences well beyond this case and the panel's application of that standard to this case upsets the congressionally defined role of federal habeas review in our federal system, I respectfully dissent from the denial of en banc review.

I.

Around 2:00 a.m. on November 17, 2000, Kotowski was severely beaten in her apartment by an assailant whom she could not later identify because of the memory loss she suffered as a result of the attack. The assailant nearly killed Kotowski, breaking almost every bone in her skull, as well as several in her hands. The evidence supported the prosecution's theory that Kotowski had awakened to find her assailant in the apartment and had been beaten to prevent her from identifying her assailant. Kotowski knew O'Laughlin; indeed, she had been cool to his interest in her.

O'Laughlin had the means to perpetrate this attack. He lived only two doors down from Kotowski and, as a maintenance worker in the apartment complex, had a key to Kotowski's apartment, had been there, and knew the apartment's layout. That level of access was necessary to commit the crime because the police found no signs of forced entry into Kotowski's apartment. Additionally, the police found a weapon that could have been used in the attack — a baseball bat with O'Laughlin's name inscribed on the barrel — hidden under some leaves in the woods behind the apartment complex. Moreover, the police encountered O'Laughlin near the scene of the crime just minutes after the attack and noticed the next day that he had a cut on his face and a bruise below his left ear, which were consistent with being involved in a struggle.

O'Laughlin also had a motive. He had smoked crack cocaine in the hours before the attack and had called several drug dealers from the telephone in his apartment only minutes before the attack, desperately seeking more drugs. O'Laughlin had no money to buy more drugs that night, and he thought that Kotowski was well off from seeing her apartment. Although Kotowski's attacker took nothing from the apartment, police found her purse on the floor near the bathroom. Kotowski testified that she typically kept her purse on the inside handle of her bedroom door. The prosecution argued that Kotowski's attacker left without taking anything because, during the attack, he had heard Kotowski's upstairs neighbor get to the phone and speak, and feared that the police were on the way. The police reenacted the upstairs neighbor's telephone call and determined that a person in Kotowski's apartment could hear that the upstairs neighbor was speaking on the phone.

O'Laughlin also demonstrated a consciousness of guilt. He appeared "uneasy and distant" when the police encountered him outside shortly after 2:00 a.m. in near-freezing temperatures wearing nothing but his boxer shorts. O'Laughlin told the police a series of lies and repeatedly shifted his story as to what he was doing on the night of the attack. When O'Laughlin encountered the police shortly after the attack, they told him they had been unable to locate unit 202, the apartment of the upstairs neighbor who had called the police. O'Laughlin, who knew that the units had recently been renumbered and that unit 202 was now unit 16, did not disclose that information to the officers. Rather, he misdirected them by changing their focus to purported animal noises he had heard coming from the dumpster, where the police then went. Finding nothing of interest in the dumpster, the police decided to leave. When the police returned to the apartment complex the next day, O'Laughlin refused to let the police swab what appeared to be a blood stain in his apartment and cleaned up the stain before allowing the police to return. And he gave a number of inconsistent, and sometimes inherently incredible, statements about the events of that night.

A primary defense theory was that Kotowski's estranged husband, not the defendant, had committed the assault. The husband testified, and the jury rejected that theory.

II.

The state's petition for rehearing en banc presents what is essentially a three part argument: (1) that the panel has articulated and applied a new sufficiency of evidence test, which is not clearly established law from the Supreme Court and is, in fact, inconsistent with Jackson; (2) that the panel decision otherwise violates AEDPA's strictures that relief may be granted only where the state court engages in an "unreasonable application" of clearly established federal law; and (3) that the panel has, contrary to Jackson, failed to look to the totality of the evidence and has failed to draw all inferences in favor of the verdict as required. All three aspects of the state's petition raise significant issues of law, which in my view warrant rehearing en banc.

Before addressing the merits of the state's arguments, it is important to set forth the basic framework for our review. We owe deference to the state court proceedings on two levels. First, because O'Laughlin's core argument is to the sufficiency of the evidence, we must uphold the jury's verdict unless "it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson, 443 U.S. at 317, 99 S.Ct. 2781. In making this determination, we view the evidence in the light most favorable to the prosecution. Id. at 319, 99 S.Ct. 2781.

Second, we review O'Laughlin's sufficiency challenge through the lens of federal habeas review. Under the federal habeas statute, we must presume the correctness of all factual determinations made by the state court, see 28 U.S.C. § 2254(e)(1), and may grant the writ only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1). Under this standard, we must uphold even state court decisions that are incorrect so long as they are reasonable. See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("For purposes of today's opinion, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." (emphasis in original)); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.").

Thus, to prevail, O'Laughlin must make a two-fold showing: (1) that no reasonable juror could have voted to convict; and (2) that the contrary view of the state court was not only wrong but unreasonable.

A. The Proper Test for Assessing a Sufficiency Challenge

The panel's opinion applied the Sixth Circuit's test for sufficiency, which holds that if the jury's verdict rested on "circumstantial evidence ... [that] amounts to only a reasonable speculation," it must be vacated. See O'Laughlin III, 568 F.3d at 302 (quoting Newman v. Metrish, 543 F.3d 793, 796 (6th Cir.2008), petition for cert. filed, 77 U.S.L.W. 3645 (U.S. May 12, 2009) (No. 08-1401)). The panel opinion opened its evaluation of the SJC's opinion by quoting from and implicitly...