Moore v. Ponte

Decision Date10 May 1996
Docket NumberC.A. No. 91-10483-NG.
Citation924 F. Supp. 1281
PartiesAlbert F. MOORE, Jr., Petitioner, v. Joseph PONTE, Respondent.
CourtU.S. District Court — District of Massachusetts

John H. LaChance, Framingham, MA, for Albert F. Moore, Jr.

Albert F. Moore, Jr., Norfolk, MA, pro se.

Neil S. Tassel, Boston, MA, Linda Nutting Murphy, Attorney General's Office, Criminal Bureau, Boston, MA, for Joseph Ponte.


GERTNER, District Judge.


On June 28, 1976, petitioner Albert F. Moore, Jr. was found guilty of First Degree Murder by an Essex Superior Court jury and received a sentence of life imprisonment without parole. On August 29, 1979, the Massachusetts Supreme Judicial Court affirmed Moore's conviction. See Commonwealth v. Moore, 379 Mass. 106, 393 N.E.2d 904 (1979).

On October 28, 1988, defendant filed a motion for a new trial. This motion was amended on October 5, 1989 to allege ten errors by the trial court. On January 4, 1990, the trial judge denied the motion, stating as follows:

Having examined the written motion and the memorandum and whereas it appears the grounds advanced were not such as would require an evidentiary hearing and mostly were previously advanced or known but not raised in any earlier proceeding and trial and where it further appears from the court's review that the grounds advanced are without merit, denied.

In June, 1990, petitioner sought discretionary leave to appeal the denial of his new trial motion to the Massachusetts Supreme Judicial Court. See M.G.L. c. 278 § 33E. On October 10, 1990, a single justice of the Supreme Judicial Court denied petitioner leave to appeal on the ground that the issues raised by his motion were neither new nor substantial.

On February 6, 1991, petitioner, acting pro se, filed this petition for writ of habeas corpus asserting the same ten claims of error raised in his motion for a new trial. On March 9, 1993, this Court, Keeton, J., issued an order dismissing counts 1-3 and 5-10 on the ground that they were procedurally barred because the state courts had rejected them on independent and adequate state law grounds, a rejection immune from federal court review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Court appointed counsel to represent petitioner on the remaining count, Count 4, which alleged that petitioner was denied due process of law because he was kept in a so-called prisoner's dock during his trial. The matter was subsequently transferred to the undersigned.

Before the Court is Count 4 of the petition and petitioner's Motion for Reconsideration of the Issue of Procedural Bar, by which he seeks to revisit Judge Keeton's earlier decision dismissing the remaining counts.

Although I find the use of the prisoner's dock may have been constitutional error under the circumstances of petitioner's trial, I also find that the error, if any, was harmless. Accordingly, I DENY the petition for writ of habeas corpus with respect to Count 4. I also DENY petitioner's motion for reconsideration except as to Counts 1 and 2, for which it is ALLOWED. After reconsideration, I DISMISS Count 1 on the merits but reserve consideration of Count 2 pending further briefing.


In Count 4, petitioner contends that his conviction was constitutionally defective because the trial judge refused his request to sit at counsel table and instead required him to sit in a so-called "prisoner's dock" during the course of his trial.1 At the time of petitioner's trial, use of the prisoner's dock was common practice in Massachusetts courts, and the determination of whether the defendant was to sit there or at counsel table was left to the discretion of the judge. See Commonwealth v. Moore, 379 Mass. at 109, 393 N.E.2d 904.

After his conviction, petitioner raised the prisoner's dock issue in his direct appeal. In June, 1979, while petitioner's appeal was pending, the First Circuit issued its opinion in Walker v. Butterworth, 599 F.2d 1074 (1st Cir.1979) cert. denied 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). Walker involved a petition for writ of habeas corpus in which the prisoner had alleged that his confinement in a prisoner's dock constituted constitutional error. Although the writ was granted on other grounds, the court addressed the prisoner's dock issue in dicta, stating that "the Massachusetts prisoner dock must be considered, as a general matter, to be an unconstitutional practice." Walker, 599 F.2d at 1081.2

When the Supreme Judicial Court reviewed petitioner's conviction, it too considered the issue of the prisoner's dock. See Moore, 379 Mass. at 107-111, 393 N.E.2d 904. The Court concluded that as a general matter, trial judges should honor a defendant's request to sit at counsel table, but that the use of the dock was not objectionable in situations "where inquiry reveals that some security measures are necessary, and where the dock is the least restrictive measure available." Id. at 111, 393 N.E.2d 904. Although the record revealed no such inquiry in petitioner's case, the SJC held that any resulting error was harmless, in that defendant was able to consult with defense counsel throughout the trial, and the trial judge forcefully instructed the jury to draw no negative inference from petitioner's being seated in the dock. Id.

Three years after petitioner's conviction became final, the First Circuit directly addressed the prisoner's dock issue in Young v. Callahan, 700 F.2d 32 (1st Cir.1983) cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). In Young, the court held that, under the circumstances of the case (primarily the defendant's prior record of good behavior at trial and the lack of any judicial finding of necessity) that use of the prisoner's dock was unconstitutional.3 Applying the "harmless beyond a reasonable doubt" standard in force at the time, the Court ordered the writ to issue. Id. at 3537.

Petitioner now seeks, on collateral review, the relief which the Supreme Judicial Court denied him on his direct appeal. In essence, petitioner contends that the use of the dock in his case was unconstitutional because the trial judge did not make, and could not have made, findings that his placement in the dock was required by any concern for security. Before addressing the substance of this claim, I must first address the government's contention that petitioner's claim is barred by the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

A. The Teague Non-Retroactivity Doctrine

1. The Development of the Teague Doctrine

In Teague, a plurality of the Supreme Court announced a new standard for determining whether new rules of law should apply retroactively to cases on collateral review. After deciding that the principal purpose of habeas corpus review is to insure that state trials are conducted according to the constitutional standards in place at the time, the Teague plurality concluded that, ordinarily, a new rule of constitutional law should not be applied retroactively to scrutinize convictions which became final prior to its announcement. 489 U.S. at 306, 310, 109 S.Ct. at 1073, 1075. The plurality found only two narrow exceptions to this general principle of non-retroactivity: where the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" or where "it requires observance of those procedures that are implicit in the concept of ordered liberty." Teague, 489 U.S. at 307, 109 S.Ct. at 1073. A majority of the Court has since adopted this standard, making it binding precedent. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Saffle v. Parks, 494 U.S. 484, 488-495, 110 S.Ct. 1257, 1260-1264, 108 L.Ed.2d 415 (1990).

Teague's deceptively simple injunction against retroactive rule application in habeas cases has proven to be anything but straightforward in its application. Indeed, the decision has drawn habeas courts into an epistemological morass. They face the impossible task of discovering objective "newness" within an allegedly seamless web of judge-made constitutional doctrine. The result, as some commentators have noted, is that within the body of appellate habeas case law, there appears to be "little to distinguish the rules which have been denominated `new' from those deemed not to be `new.'" James S. Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure, § 25.5, p. 769-771 (2nd ed. 1994).

Part of the confusion, no doubt, stems from the Supreme Court's own inconsistent formulation and application of the Teague standard.4 Even within the same paragraph, Teague offers conflicting definitions. It defines a new rule as one which "breaks new ground or imposes a new obligation on the States or Federal government", suggesting that a rule is new if it represents an overturning or at least a clear break with past practice. 489 U.S. at 301, 109 S.Ct. at 1070 (plurality opinion). In the very next sentence, however, Teague states that a rule is new if it "was not dictated by precedent." Id. This second characterization suggests that "newness" is a very broad concept encompassing any holding which is not the purely logical consequence of prior doctrine.

The ambiguity of Teague's formulation is made evident by an analysis of its progeny. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the first case applying Teague, the Court overturned the death sentence of a mentally retarded prisoner who had been sentenced under Texas' so-called "special issues" capital sentencing scheme. Under Texas law, a jury determines whether the defendant in a capital murder case will be sentenced to death by answering "yes" or "no" to three questions: whether the murder was "deliberate," whether the defendant is likely to constitute a continuing threat to...

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