Powell v. Tompkins

• Decision Date: 28 February 2013
• Docket Number: Civil Action No. 12–10744–WGY.
• Citation: 926 F.Supp.2d 367
• Parties: Aaron POWELL, Petitioner, v. Steven W. TOMPKINS, Sheriff, Suffolk County, Respondent.
• Court: U.S. District Court — District of Massachusetts

926 F.Supp.2d 367

Aaron POWELL, Petitioner,

v.Steven W. TOMPKINS,¹ Sheriff, Suffolk County, Respondent.

Civil Action No. 12–10744–WGY.

United States District Court,

D. Massachusetts.

Feb. 28, 2013.

Kathryn Hayne Barnwell, Attorney at Law, North Andover, MA, for Petitioner.

Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM & ORDER

YOUNG, District Judge.

I. INTRODUCTION

In the wake of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), this petition for a writ of habeas corpus is the vehicle for a massive frontal assault on Massachusetts's gun control legislation. The attack fails.

Aaron Powell (“Powell”) brings this habeas petition under 28 U.S.C. section 2254, appealing from a decision by the Massachusetts Supreme Judicial Court (“Supreme Judicial Court”) affirming his convictions for, inter alia, possession of a firearm without a firearm identification (“FID”) card and carrying a firearm without a license. In his petition, Powell contends that (1) the statutory presumption in Massachusetts General Laws chapter 278, section 7, placing the burden of producing evidence of an FID card and a license to carry a firearm on the defendant, violates his due process rights under the Fourteenth Amendment and his right to bear arms under the Second Amendment; ² (2) trial counsel's failure to move to suppress statements made by Powell to a police officer while in police custody violated Powell's Sixth Amendment right to effective assistance of counsel; and (3) Massachusetts General Laws chapter 140, section 131(d)(iv) is unconstitutional because, in setting the minimum age for obtaining a license to carry a firearm at twenty-one, it is violative of the rights of eighteen-to twenty-year-olds under the Second Amendment and under the Equal Protection Clause of the Fourteenth Amendment.

A. Procedural Posture

Subsequent to a bench trial held on January 30, 2009, in the Central Division of the Boston Municipal Court, Powell was convicted of (1) possession of a firearm without an FID card, in violation of Massachusetts General Laws chapter 269, section 10(h); (2) carrying a loaded firearm without a license, in violation of Massachusetts General Laws chapter 265, section 10(n); (3) resisting arrest, in violation of Massachusetts General Laws chapter 268, section 32B; and (4) carrying a firearm without a license, in violation of Massachusetts General Laws chapter 269, section 10(a).³ Pet. Relief Conviction Sentence Person State Custody (“Habeas Pet.”) 2–3, ECF No. 1; see also Pet'r's Mem. Law Supp. Pet. Writ Habeas Corpus (“Pet'r's Mem.”) 3–4, ECF No. 2. Powell was sentencedthat same day to eighteen months in the South Bay House of Correction and to probation on and after his release for a period of three years.⁴ Habeas Pet. 2.

Powell initially appealed his convictions to the Massachusetts Appeals Court, but the appeal was ultimately taken up by the Supreme Judicial Court sua sponte on August 24, 2010. Habeas Pet. 3. On April 28, 2011, the Supreme Judicial Court affirmed all of Powell's convictions. Id.; see Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114 (2011), cert. denied sub nom.,––– U.S. ––––, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012). Having exhausted all available state remedies, Powell timely filed a petition for writ of certiorari in the Supreme Court, which was denied on March 19, 2012. Habeas Pet. 4; see Powell v. Massachusetts, ––– U.S. ––––, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012).

On April 23, 2012, Powell filed a petition for a writ of habeas corpus in this Court and included with it a memorandum in support of his petition. Habeas Pet.; Pet'r's Mem. The Commonwealth electronically filed an answer to Powell's petition on June 1, 2012, Answer, ECF No. 10, and on the same day, manually filed a supplemental answer with this Court,⁵ Supplemental Answer. On August 31, 2012, the Commonwealth submitted a memorandum in opposition to Powell's petition. Resp't's Mem. Law Opp'n Pet. Writ Habeas Corpus (“Resp't's Mem.”), ECF No. 15. Powell submitted a reply to the Commonwealth's opposition on September 14, 2012. Pet'r's Reply Resp't's Opp'n Pet. Writ Habeas Corpus, ECF No. 16.

B. Facts

The background of this case is set forth in extensive detail in the earlier decision by the Supreme Judicial Court. See Powell, 459 Mass. at 575–76, 582, 946 N.E.2d 114. Because Powell does not contest the accuracy of the Supreme Judicial Court's account, this Court accepts it without inquiry. See28 U.S.C. § 2254(e)(1) (noting that, on habeas review, “determination[s] of ... factual issue[s] made by a State court shall be presumed to be correct”). Nevertheless, this Court will recount in summary fashion those facts that are pertinent to the disposition of this habeas petition.

Around 11 o'clock in the evening on August 20, 2008, two Boston police officers, Manuel Blas (“Officer Blas”) and Scott Roby (“Officer Roby”), were patrolling the Roxbury neighborhood of Boston in an unmarked police cruiser when they came across a large gathering of teenagers and young adults at the intersection of Sonoma Street and Maple Street. Powell, 459 Mass. at 575, 946 N.E.2d 114. The twenty-five or so men and women assembled around the intersection were organized into three distinct groups, and it seemed to Officer Blas as though some sort of altercation was about to take place. Id.

Peering out of the police cruiser, Officer Blas noticed a young man, who happened to be Powell,⁶ standing apart from all of the other individuals. Id. Powell observed the officers and then looked away, after which point he proceeded to walk toward the officers and through one of the assembled groups. Id. While walking, Powell placed his right hand on his hip and his left hand on the center of his waist to grasp what appeared to Officer Blas to be a gun. Id. After making his way past the crowd, Powell took off running, prompting Officer Blas to leave his police cruiser and make chase. Id. at 576, 946 N.E.2d 114. While in pursuit, Officer Blas witnessed Powell brandish a .22 caliber revolver, which caused Officer Blas to draw his gun and twice shout, “Drop it.” Id. Powell ignored Officer Blas's command and made his way to a fence that ran alongside a driveway near a garage. Id. While attempting to scale the fence, Powell dropped the revolver on the ground. Id. Eventually, after first encountering a pair of security guards who were working in the area, Powell was arrested by Officer Blas.⁷Id.

Shortly thereafter, Officer Blas asked Powell to explain why he had run away from the police cruiser and whether he had a license for the firearm that he had dropped. Id. at 582, 946 N.E.2d 114. Without first being advised of his Miranda rights, Powell responded by saying that he did not have a firearm. Id. There is no indication in the record that Powell ever answered Officer Blas's question regarding the possession of a firearms license or that he at any point furnished a license to the police.

II. ANALYSISA. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S.Code), a federal court is permitted to grant habeas relief with respect to any and all claims adjudicated on the merits in a state court only if such adjudication (1) “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” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A state court's decision is “contrary to” clearly established federal law if it “applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] ha[s] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court's decision involves an “unreasonable application” of clearly established federal law if it “correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. A federal court sitting in habeas is instructed to accord decisions handed down by a state court considerable deference, Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010), and a habeas petitioner must bear the weighty burden of proving that the state court decision in question failed to conform to the letter of Supreme Court precedent or to represent an appropriate extension thereof, see Pelletier v. Russo, No. Civ.A. 05–30014–MAP, 2006 WL 335280, at *5 (D.Mass. Feb. 9, 2006) (Ponsor, J.) (citing Bell, 535 U.S. at 693, 122 S.Ct. 1843).

B. Statutory Presumption Pertaining to the Possession and Carrying of a Firearm Without a License

Massachusetts General Laws chapter 269, section 10(h) authorizes punishment for anyone who “owns [or] possesses ... a firearm ... without complying with the provisions of [Massachusetts General Laws chapter 140, section 129C].” Mass. Gen. Laws ch. 269, § 10(h)(1). Massachusetts General Laws chapter 140, section 129C, when read in concert with a companion provision in Massachusetts General Laws chapter 140, section 129B, provides that an individual may not own or possess a firearm in her home or place of business without first obtaining an FID card from her local licensing authority. SeeMass. Gen. Laws ch. 140, §§ 129B(1), 129C; see also Commonwealth v. Loadholt, 460 Mass. 723, 724 n. 1, 954 N.E.2d 1128 (2011). Conversely, Massachusetts General Laws chapter 269, section 10(a) subjects to criminal charges anyone who “knowingly has in [her] possession ... a firearm, loaded or unloaded ... without ... having in effect a license to carry firearms”...