Robinson v. Ponte

• Decision Date: 22 May 1991
• Docket Number: No. 90-2093,90-2093
• Citation: 933 F.2d 101
• Parties: Paul G. ROBINSON, Petitioner, Appellant, v. Joseph PONTE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 101

933 F.2d 101

Paul G. ROBINSON, Petitioner, Appellant, v. Joseph PONTE, Respondent, Appellee.

No. 90-2093.

United States Court of Appeals, First Circuit.

Submitted Feb. 6, 1991.

Decided May 22, 1991.

Paul G. Robinson, on brief, pro se.

Scott Harshbarger, Atty. Gen., and Robert N. Sikellis, Asst. Atty. Gen., on brief, for respondent, appellee.

Before CAMPBELL, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

The appellant, Paul G. Robinson, appeals the dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254, for failure to raise a federal constitutional issue. ¹ We affirm.

The appellant was convicted in 1969 of two counts of murder in the first degree and two counts of armed assault with intent to rob. The murder convictions were based on the Commonwealth's theory of felony murder, i.e., that the victims were killed in the course of the armed robbery. The appellant's convictions were affirmed on direct appeal. Commonwealth v. McGrath, 358 Mass. 314, 264 N.E.2d 667 (1970). ²

Appellant thereafter filed several unsuccessful post-conviction petitions both in the state and federal courts. Of pertinent interest here is appellant's third motion for a new trial filed in the state court in 1988. In that motion, appellant argued that the trial judge erred in failing to instruct the jury that they could consider evidence of the appellant's intoxication at the time of the crime in deciding whether the appellant had the necessary specific intent to commit armed assault with intent to rob, the felony underlying the felony murder conviction. At the time of appellant's conviction in 1969, the Commonwealth did not allow a defendant to rely on intoxication to warrant a finding of a lack of capacity to commit a specific intent crime. But, in 1985, in Commonwealth v. Henson, 394 Mass. 584, 476 N.E.2d 947, (1985), the Massachusetts Supreme Judicial Court (SJC) announced that "where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt." Id. at 593, 476 N.E.2d 947.

In appellant's 1988 state court motion for a new trial, he argued that the Henson rule should be applied to his case retroactively. His motion for a new trial was denied and this denial was affirmed by the SJC on appeal. Commonwealth v. Robinson, 408 Mass. 245, 557 N.E.2d 752 (1990). The SJC determined that, as to this appellant, Henson was a new rule, i.e., although Henson was foreshadowed by earlier SJC decisions beginning in the late 1970s, none of those decisions was in effect at the time of appellant's 1969 trial and certainly none of its decisions in effect at the time of appellant's trial dictated the result in Henson. Id. at 247 n. 2, 557 N.E.2d 752. The SJC then applied the analysis of the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether this new rule should be applied retroactively to appellant's case on collateral review. The SJC concluded that the Henson rule on voluntary intoxication was not "central to an accurate determination" of the appellant's innocence or guilt and so concluded that the appellant was not entitled to the benefit of retroactive application of the Henson rule. Commonwealth v. Robinson, 408 Mass. at 248, 557 N.E.2d 752 (quoting Teague v. Lane, 489 U.S. at 313, 109 S.Ct. at 1077 (opinion of four Justices)).

The appellant then filed the present petition for habeas corpus in the federal district court, arguing that he was entitled to an instruction that the jury could consider the evidence of intoxication when deciding whether the Commonwealth had proven the element of specific intent. He contended that his entitlement rose from his constitutional right to have the Commonwealth prove each element of the crime beyond a reasonable doubt and his constitutional right to present a defense. The district court summarily dismissed the petition, stating that "[p]etitioner's first ground for relief, ³ that the trial judge failed to instruct the jury on intoxication as it may bear on specific intent, does not raise a constitutional issue."

We turn now to the question on appeal. In essence, appellant is seeking federal review of the state court's decision to refuse to apply the Henson rule retroactively to his case on collateral review. Although the district court's rationale for dismissing this habeas petition was terse, we believe it reasonable to assume that the district court's conclusion that the petition presented no constitutional issue is based on the oft-repeated principle that where a state court has refused to make its ruling retroactive,

the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say the decisions of its highest court, though later overruled, are law none the less for intermediate transactions.

Great Northern Railway v. Sunburst Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932).

To be sure, appellant's argument to the contrary has some, at least initial, appeal in this case. Appellant, in effect, suggests that where the state court's announcement of a new rule is, in fact, prompted by that court's belief that the new rule is compelled by the federal constitution, then should not the federal court have some "voice" as to whether this precipitating constitutional principle should be applied retroactively or not? Further, appellant contends, in this case, the SJC determined that the Henson rule, i.e., that where requested and supported by the evidence, a defendant is entitled to an instruction that evidence of intoxication may be considered in deciding whether the prosecution has proved specific intent beyond a reasonable doubt, was required as a matter of constitutional due process.

Our current rule in particular circumstances might permit a defendant to be convicted who, because of intoxication, totally lacked a specific criminal intent, thus raising a constitutional due process issue. An absolute rule that bars consideration of relevant evidence bearing on a defendant's capacity to have a specific intent is, in any event, arbitrary.

Commonwealth v. Henson, 394 Mass. at 593, 476 N.E.2d 947; see also, Commonwealth v. Grey, 399 Mass. 469, 471 n. 3, 505 N.E.2d 171 (1987) ("The quoted statement in the Henson opinion concerning arbitrariness ... derives from the principle that, absent a strong State interest in ignoring such evidence, a rule which requires a jury to disregard evidence bearing directly on the defendant's guilt would be a violation of due process of law and the defendant's State and Federal constitutional right to present a defense.") The final thread to appellant's argument is that the underlying constitutional principles, spurring the recognition of the right to an instruction as to voluntary intoxication, are among those "bedrock procedural element[s]" recognized by the Teague Court as within a limited exception to the general rule of nonretroactivity on collateral review, namely, the In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), requirement that a state prove every element (here, specific intent) beyond a reasonable doubt and the right to present a defense, which appellant suggests is rooted in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), applying the sixth amendment confrontation clause to the states via the fourteenth amendment.

Nonetheless, we determine that the district court's conclusion was correct for the following reasons. First, we find the case of Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973) (per curiam) instructive. In Stone, petitioners alleged, on federal habeas review, that a Florida statute proscribing "the abominable and detestable crime against nature" was unconstitutionally vague. Although the lower federal courts agreed with petitioners' allegation, the Supreme Court ruled that petitioners had notice of the criminality of their conduct, based on the construction of that statute by the state's highest court at the time of petitioners' acts. In anticipation of such a ruling, petitioners had further relied on a decision of the Florida Supreme Court, which was decided after their convictions had become final, and which had reconsidered those earlier decisions rejecting a vagueness argument. In this later-decided case, Franklin v. State, 257 So.2d 21, 22 (Fla.1971), the state court stated that

[a] very serious question is raised as to whether the statute meets the recognized constitutional test that it inform the average person of common intelligence as to what is prohibited so that he need not speculate as to the statutory meaning.

In an accompanying footnote, the state court therein cited state and federal caselaw in support for this proposition. Id. at 22 n. 2. Ultimately, the state court held that the statute was "void on its face as unconstitutional for vagueness and uncertainty in its language, violating constitutional due process," but also ruled that the judgment holding the felony statute void was not retroactive, but prospective only. Id. at 24. On review of the federal habeas petition, the Supreme Court rejected the petitioners' reliance on this later case, stating that the state court was not "constitutionally compelled" to overrule its earlier decision with respect to pre-Franklin convictions or to make retroactive its new construction of the Florida statute. Wainwright v. Stone, 414 U.S. at 23-24, 94 S.Ct. at 192-93.

Stone suggests to us, therefore,...