Quigley v. Vose, MCI-N

• Decision Date: 06 November 1987
• Docket Number: No. 87-1561,MCI-N,87-1561
• Citation: 834 F.2d 14
• Parties: Mark E. QUIGLEY, Petitioner, Appellant, v. George VOSE, Superintendent oforfolk, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 14

834 F.2d 14

Mark E. QUIGLEY, Petitioner, Appellant, v. George VOSE, Superintendent of MCI-Norfolk, Respondent, Appellee.

No. 87-1561.

United States Court of Appeals First Circuit.

Heard Nov. 6, 1987.

Decided Nov. 25, 1987.

Jane Climenko Gottschalk, Cambridge, Mass., by Appointment of the Court, for petitioner.

Linda G. Katz, Asst. Atty. Gen., Criminal Bureau, with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief for respondent.

Before BOWNES and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

PER CURIAM.

Mark E. Quigley, petitioner-appellant, was tried in a Massachusetts state court and convicted of second degree murder. His conviction was affirmed by the Massachusetts Supreme Judicial Court (SJC). Commonwealth v. Quigley, 391 Mass. 461, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985).

After his state remedies were exhausted, Quigley brought a petition for habeas review in the United States District Court for the District of Massachusetts. 28 U.S.C. Secs. 2241-54. The court referred the petition to a United States magistrate for preliminary consideration. See Rule 10, 28 foll. Sec. 2254; see also Rules for United States Magistrates (D.Mass), Rule 3(a). In a scholarly report and recommendation dated February 18, 1987 (Report), the magistrate suggested that the habeas application be summarily rejected. Petitioner objected. The district court nevertheless adopted the Report, accepted the recommendation, and dismissed the habeas case. The petitioner applied for, and received, a certificate of probable cause and thereupon prosecuted this appeal. We affirm the dismissal.

Quigley argues before us, as he did before the state courts and the federal district court, that his conviction is flawed because the trial judge's instructions to the jury were constitutionally defective. In his view, those instructions directed a mandatory conclusion as to intent (an essential element of the second degree murder charge) once certain predicate facts were found. This, Quigley argues, transgressed the rule laid down by the Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). From that point forward, appellant rides two horses in tandem: he urges that such a miscue automatically require sreversal of his state conviction; and in the event we are hesitant to invoke a per se rule, he tells us that the error substantially affected the outcome of his case.

We resist the temptation to repastinate ground already well-spaded by other tribunals which have heard--and overruled--these selfsame arguments. E.g., Commonwealth v. Quigley, 462 N.E.2d at 95; Report at 7-12 & nn. 7-9. For purposes of this appeal, we can assume arguendo that the charge was infirm in somewhat the manner advocated by the petitioner. See Commonwealth v. Quigley, 462 N.E.2d at 96. But, the record belies the conclusions which appellant would have us draw from that premise. Notwithstanding the impairment in the charge, we believe the instant application was deservedly dismissed.

As we see it, Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), controls this case. Rose clearly established that a Sandstrom-type defect in jury instructions does not "automatically require reversal of an otherwise valid conviction." Id. at 3107 (footnote omitted). To the exact contrary, an improper burden-shifting instruction must be subjected to harmless error analysis. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also United States v. Argentine, 814 F.2d 783, 788-90 (1st Cir.1987).

Quigley's counsel makes an ingenious--but ultimately unpersuasive--contention that Rose does not apply to this case. That contention prescinds from the hoary decision in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). To be sure, Stromberg was not explicitly overruled by...