Tata v. Carver, 90-1351

• Citation: 917 F.2d 670
• Decision Date: 03 August 1990
• Docket Number: No. 90-1351,90-1351
• Parties: Patrick TATA, Jr., Petitioner, Appellant, v. Norman CARVER, Respondent, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 670

917 F.2d 670

Patrick TATA, Jr., Petitioner, Appellant, v. Norman CARVER, Respondent, Appellee.

No. 90-1351.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1990.

Decided Oct. 31, 1990.

Robert L. Sheketoff, with whom Zalkind, Sheketoff, Wilson, Homan, Rodriguez & Lunt were on brief, for petitioner-appellant.

Judy G. Zeprun, Asst. Atty. Gen., for respondent-appellee.

Before SELYA and CYR, Circuit Judges, and RE, ^* Judge.

CYR, Circuit Judge.

Petitioner Patrick Tata, Jr., appeals from a judgment of the United States District Court for the District of Massachusetts summarily dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. On appeal, petitioner asserts that the state trial court violated due process by refusing to give the jury a lesser included offense instruction. We affirm.

I

The facts are uncontested. Following a jury trial, Tata was found guilty of trafficking in one hundred grams or more but less than two hundred grams of cocaine in violation of M.G.L. c. 94C Sec. 32E(b)(2). In the course of a lawful search of Tata's apartment and a nearby hall closet accessible to Tata as an incident of his tenancy, the police lawfully seized 111.82 grams of eighty-six percent pure "rock" cocaine, and associated drug paraphernalia.

At trial, petitioner claimed that he neither possessed nor controlled the cocaine for any purpose whatsoever. Petitioner did attempt to show, however, that he personally consumed as much as two grams of cocaine a week. The court instructed the jury on the charged offense of trafficking in one hundred grams or more of cocaine and on the lesser included offense of simple possession. At the conclusion of the jury charge, Tata objected to the absence of instructions on the lesser included offense of trafficking in less than one hundred grams of cocaine and on the lesser included offense of possession with intent to distribute.

Tata filed an appeal with the Massachusetts Appeals Court which included a due process challenge to the trial court's refusal to instruct on trafficking in less than one hundred grams of cocaine. Tata contended that the jury, in determining the quantity of cocaine he may have intended to distribute, was entitled to consider how much was intended for personal consumption and to deduct that portion from the total amount seized. The Massachusetts Appeals Court held that Tata's due process claim was meritless because the Massachusetts statute prohibits the possession of more than one hundred grams of cocaine with intent to distribute any part of it. Commonwealth v. Tata, 28 Mass.App.Ct. 23, 545 N.E.2d 1179 (1989). The Supreme Judicial Court denied Tata's appeal, which included a due process challenge to the Massachusetts Appeals Court's interpretation of the state statute itself.

Tata petitioned for a writ of habeas corpus under 28 U.S.C. Sec. 2254 on the grounds that his due process rights were violated both by the trial court's refusal to give the requested lesser included offense instructions and by the Massachusetts Appeals Court's interpretation of the Massachusetts statute. The district court summarily dismissed the petition on the ground that the Massachusetts Appeals Court's interpretation of the state statute, see M.G.L. c. 94C Sec. 32E(b)(2), does not violate due process.

II

Although the United States Supreme Court has held that a jury in a capital case must be given an instruction on lesser included noncapital offenses where the evidence warrants such a charge, see Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 2384, 65 L.Ed.2d 392 (1980), the Court explicitly reserved the question whether the Due Process Clause of the United States Constitution requires a lesser included offense instruction in noncapital cases, id. at 638 n. 14, 100 S.Ct. at 2390 n. 14. Several circuits which have considered the question in the context of a noncapital case have concluded that the absence of a lesser included offense instruction raises no federal due process issue. See Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir.1988); James v. Reese, 546 F.2d 325, 327 (9th Cir.1976); Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir.1988); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir.1987). On the strength of the reasoning in Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (limiting habeas relief to correction of fundamental errors by trial court), other circuits have held that a due process violation occurs only when the failure to give such an instruction in a noncapital case amounts to so fundamental a defect as to cause "a complete miscarriage of justice [ ]or an omission inconsistent with the rudimentary demands of fair procedure." See Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.) (en banc), cert. denied, --- U.S. ----, 110 S.Ct. 2626, 110 L.Ed.2d 646 (1990); Nichols v. Gagnon, 710 F.2d 1267, 1272 (7th Cir.1983); De Berry v. Wolff, 513 F.2d 1336, 1338 (8th Cir.1975). These courts look to the facts of the particular case with a view to whether the absence of a lesser included offense instruction is "sufficiently egregious to warrant habeas relief." See, e.g., Trujillo v. Sullivan, 815 F.2d 597, 603 (10th Cir.1987). The Third Circuit alone extends the reasoning in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 to noncapital cases, by holding that it is constitutional error not to give a requested "lesser included offense" instruction whenever the evidence would support a conviction either on the charged offense or on an uncharged "lesser included offense," or both. See Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988).

We have yet to consider whether the refusal of a lesser included offense instruction in a state court prosecution for a noncapital offense is cognizable in a section 2254 habeas proceeding. ¹ We find the reasoning in Hill, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, and its progeny, see, e.g., Bagby, 894 F.2d 792; Nichols, 710 F.2d 1267, the more persuasive.

On the one hand, the "theory underlying th[e] automatic bar to habeas review has not been well articulated," Trujillo, 815 F.2d at 602, and Hill itself suggests that a "due process like" analysis is appropriate for determining whether a claimed error is cognizable in federal habeas corpus proceedings, Hill, 368 U.S. at 428-29, 82 S.Ct. at 471-72; Trujillo, 815 F.2d at 603. On the other hand, we share the view of those courts which have concluded that the rule in Beck v. Alabama is founded in eighth amendment jurisprudence, rather than on due process concerns, see Bagby, 894 F.2d at 796; Nichols, 710 F.2d at 1270, ² and that extension of the Beck rule to noncapital cases would "transform the federal courts in the exercise of their habeas corpus jurisdiction from enforcers of specific constitutional rights to guarantors of the accuracy of state court determinations of guilt...." Id. at 1272.

A prudential restriction on federal habeas review in noncapital cases to instances where the failure to give a lesser included offense instruction threatens a fundamental miscarriage of justice accords with general due process standards, see, e.g., Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941) (due process violated where lack of fundamental fairness prevents fair trial), and at the same time recognizes that the absence of such an instruction "in a noncapital case rarely, if ever, presents a constitutional question," Pitts v. Lockhart, 911...