Powell v. Tompkins

POWELL, Petitioner, Appellant, Aaron TOMPKINS, Sheriff,

Steven Suffolk

County, Appellee. Respondent, 13-1310.

No. Appeals, Court of

United States

First Circuit.

April Barnwell, Hayne by appointment

K. court, appellant. Reardon, Attorney G. Assistant Susanne General, Bureau, Appeals Criminal Divi- sion, Coakley, Attorney with whom Martha General, appellee. was on brief for TORRUELLA, Before HOWARD THOMPSON, Judges. Circuit HOWARD, Judge. Circuit Petitioner Aaron Powell was convicted charges including on several state unlawful firearm, possession of a loaded see Mass. 10(a), (h), (n), §§ ch. Gen. Laws his convictions were affirmed the Mas- (SJC), Supreme sachusetts Judicial Court Powell, see Commonwealth v. 459 Mass. (2011). 572, 946 N.E.2d 114 Powell then sought pursuant federal habeas relief to 28 which U.S.C. was denied appeal district court. In this from that denial, primarily protests he the state criminal procedure requirement that a de- fendant accused unlawful of a producing firearm bear the evi- burden proper dence of a license as an affirmative proffered defense. The absence of such gives presumption evidence rise to a dur- ing trial that the defendant did not have a license; but, produced, prose- valid if away proving beyond when he saw the officers cution has burden and moved that the defense does not his hands toward reasonable doubt his waist a manner 278, 7;§ Laws ch. exist. See Mass. Gen. which officers viewed as consistent Jones, concealing retrieving 372 Mass. with Commonwealth contraband. past N.E.2d 1308 The SJC conclud- Powell walked the crowd and then procedure comports began that this state with to run. ed and we hold that Pow- process, federal due ensued, route, A foot chase and while en ell has failed to establish that one clutching something officer saw Powell clearly court decision conflicts with estab- right in his hand. The officer next saw the precedent. lished addi- gun handle Powell’s hand and twice tion, Powell advances Second Amendment drop commanded Powell to it. Powell con- claims, Equal a related Protection flee, tinued to attempting and when that these claim. We hold claims also officers, climb a fence to evade the he disturbing provide no basis his state dropped a .22 caliber revolver to the Finally, convictions. we deem waived his ground. along Powell then ran the fence Sixth Amendment ineffective assistance of garage. and into a darkened He soon Accordingly, counsel claim. we affirm the fists, emerged with both hands clenched petition district court’s denial his charging one of the officers. The offi- § 2254 relief. way, cer moved out of the Powell knocked officer, into the second and the foot chase Background I. continued down the police street. The required presume are to We caught up soon with Powell and arrested and, factual rendition is correct SJC’s him. The loaded revolver was retrieved therefore, description we draw our from where attempted Powell had to scale opinion. facts from that 28 U.S.C. issuing the fence. Without first Miranda 2254(e); Maloney, § v. see Gunter 291 warnings, why an officer asked him he ran (1st Cir.2002). F.3d and whether he had license for the fire- arm. Powell not have a replied he did night August Late one two Bos- firearm. police patrol ton officers were routine Roxbury they brooding when noticed a The Commonwealth of Massachusetts at an charged crowd intersection. The two dozen Powell with several state crimes. and, youths aligned right jury He waived his trial appeared or so be into groups, groups proceeding, three with two on one side after a bench was convicted of li- publicly carrying of the street and the third on the other a firearm without a 10(a); cense, 269, § People yelling side of the street. were Mass. Gen. Laws ch. another, loaded, pointing doing back and forth at one but so while the firearm was id. 10(n); § grew quiet possessing the crowd as the officers drove ch. ammuni- 10(h). 269, § ch. permit, their unmarked cruiser. One officer tion without id. (later young eighteen noticed a man He was sentenced to months of identified as Powell) years probation walking nearby who was but set incarceration and three groups. for the firearms and ammunition offenses.1 apart from Powell looked legality resisting 1. Powell convicted for ar- of his firearms convictions before his also was rest, part peti- petition which is not a of this habeas sentence concluded. We find that his beyond jurisdictional Additionally, although appears neither moot nor tion. it from 2254(a). completed Spencer v. the record that Powell has now his reach of 28 U.S.C. sentence, Kemna, 1, 7-8, petition challenging he filed his rejected Powell’s inef- Lastly, the SJC to the state inter appeal Powell’s While claim, of counsel which fective assistance pending, the court was appeals mediate failure to file a on trial counsel’s was based Mc Court decided United States pre-Miranda suppress motion to Powell’s it Chicago, in which held City Donald v. denying that he police to the statement keep right Amendment Second The court concluded possessed gun. had the states applies to arms and bear legal represen- any allegedly deficient Amendment. Fourteenth through the prejudice no due to tation caused Powell 3020, 3042, 177 L.Ed.2d 742, 130 S.Ct. consciousness of evidence of his other motion, the case own On its at 125. guilt. Id. SJC, which af transferred was Powell, convictions. See Powell’s firmed §a 2254 ha pursued Powell later at 118. court, in federal district petition beas Tompkins, was denied. Powell which here, rejected Pow- the SJC Pertinent (D.Mass.2013). F.Supp.2d We challenge to the Common- ell’s due of the federal habeas consider the merits evidence that he present failure to wealth’s Dickhaut, de novo. See Pena petition Id. at 124. Fol- a firearms license. lacked Cir.2013). (1st 736 F.3d the court held precedent, own lowing its produc- burden of that the accused has the II. Discussion as an affirmative of a license ing evidence Securing relief under the Antiter pos- firearms prosecutions defense Penalty Act of and Effective Death rorism It carrying offenses. Id. also session and (“AEDPA”) 1996 onerous task. See in accord procedure is held that this state 104-132, 104, 1214, § No. 110 Stat. Pub.L. the burden of because process with due 2254; § at 28 U.S.C. codified of the crime did not proving an element - Woodall, U.S. -, see also White v. (relying on shift to defendant. 1697, 1702, 698 188 L.Ed.2d 134 S.Ct. 1308). Jones, N.E.2d 361 - Titlow, U.S. -, (2014); v. 134 Burt addition, to assess In the SJC declined 10, 15-16, 187 L.Ed.2d 348 S.Ct. claim that state law the merits of Powell’s for claims ad- Powell secure relief young ability adults’ age restrictions on if appeal in his direct the state dressed publicly carry a firearm obtain a license to, contrary or in- court’s decision “was Amendment and the violate Second of, application volved an unreasonable of the Fourteenth Equal Protection Clause law, clearly established Federal as deter- The state court Amendment. Id. at 128. Court, by” Supreme mined 28 U.S.C. proce- age-based challenges 2254(d)(1). viewed his Only legal § errors that are barred, essentially because Powell durally objectively unreasonable warrant relief. 12, that his lack of licen- did not demonstrate Esparza, v. 540 U.S. 15- See Mitchell (2003) age minimum re- 16, 7, sure was based on the 124 157 L.Ed.2d 263 S.Ct. quirement alone. Id. 129-30. The SJC (expounding “contrary prong); to” Tit- low, (expounding excused Powell’s failure to raise his Sec- at 16 on “un- 134 S.Ct. arguments pretrial in a see also application” prong); ond Amendment reasonable Woodall, 1702, (empha- the issues were not avail- 134 1706 motion because S.Ct. error’ will not suf- sizing able to him until after McDonald was de- that “even ‘clear rejecting fice” and an “unreasonable-refus- cided. Id. at Fair, LaVallee, (1968); (1998); v. 816 554 see also L.Ed.2d 43 v. 391 Lefkowitz Carafas (1st Cir.1987). 234, 237-38, F.2d 19 U.S. 88 S.Ct. 20 L.Ed.2d

337 proper process analysis in that the due must that was discussed rule” al-to-extend cases). opera- account for absence of license as an AEDPA earlier charged firearms tive element of Supreme precedent, Court’s The crimes. courts, as the circuit serves that of the determine appropriate lens that To securing 2254 relief. Lo benchmark claim, governs Powell’s due we - 1, 3, Smith, U.S. -, 135 S.Ct. pez v. must, begin, as we with Massachusetts (2014) curiam); see (per 190 L.Ed.2d See, California, Medina v. e.g., law. (not- 124 S.Ct. Esparza, 540 U.S. 437, 445-46, S.Ct. court need not even be ing that a state (1992) (addressing L.Ed.2d 353 state law precedents, “so aware defenses); County affirmative Court Ul the re- reasoning neither the nor long as Allen, 140, 156-60, County ster state-court decision contradicts sult of the (ad (1979) 99 S.Ct. 60 L.Ed.2d them”). Here, largely rests on pre dressing state law inferences 358, 90 Winship, re 397 U.S. sumptions); see also Marshall v. Bristol (1970) support of his Due L.Ed.2d 368 (1st Court, Superior 753 F.3d Cir. claim, on District Columbia Process 2014) (noting that the federal court Heller, 128 S.Ct. “bound the state court’s construction of (2008) City and McDonald v. L.Ed.2d 637 issues of state its state statutes and other Chicago, 561 U.S. law”). for his Second 177 L.Ed.2d Equal and related Protection Amendment carry a firearm lawfully possess To claims. person within Commonwealth a license to do so or be either obtain

A. Due Process licensing exempt require from the normal ch. generally Mass. Gen. Laws that the Due Process ments. See It is bedrock 140, 121-131P; Hightower City §§ Amendment of the Fourteenth Clause of (1st Cir.2012) (sur Boston, 61, F.3d against conviction “protects the accused law). catego The veying Massachusetts proof beyond a reasonable except upon available at the permits ries of that were necessary fact to constitute every doubt of generally arrest consisted charged.” time of Powell’s crime with which he is (FID identification card 1068. of a firearms Winship, 397 U.S. at license, command, card), a A a B and Class “a Class argues See, ch. e.g., Mass. Gen. Laws proving be license. may not be relieved of state 129C, 131; 129B, High §§ also see doubt the elements of yond a reasonable tower, 65; Police 693 F.3d at registration a firearms license and lack of of Chief of Holden, 470 Mass. City a ‘minimal’bur Worcester by imposing so-called card of An N.E.3d 721-22 the defendant.” production upon den of qualified person a however, permits FID card primarily his claim large, Writ in his and ammunition keep licen a firearm premise that absence of rests on but does not place home or of business an element of the state criminal sure is carry them offense, contrary to itself allow an individual position a that runs ch. Laws public. and See Mass. Gen. exposited as Jones precedent 129B, 129C; at 66. Undeterred, Hightower, §§ 693 F.3d on the he relies progeny. its per a statutes, generally permits B A Class license operative select text capacity fire law, publicly carry smaller language in his crimi son to state case purposes. See Mass. Gen. contention arms for lawful complaint support nal his 181(b). (a) Whoever, provided or ex- except § The holder of a ch. Laws statute, greater privileges empted by knowingly A has has in his Class license carry may larger capaci firearm, generally publicly ... a un- possession loaded or purposes lawful that are ty firearms for loaded, 140, § as defined in [ch. 121] See id. ch. loaded and concealed. without either: 131(a); § 693 F.3d at 66. Hightower, (1) being present in or on his resi- or the board or offi ¡police chief of “[T]he business; place dence or of or police city in a or having control of the cer carry having effect a license to them,” town, authorized persons or 140, § firearms issued under [ch. authority, licensing serve as the state’s licensure]; governing § ch. and the Mass. Gen. Laws permit degree grant discretion to permits var impose any restrictions (h)(1) owns, possesses or Whoever See, 129B, §§ e.g., Mass. Gen. Laws

ies. firearm, rifle, shotgun or am- transfers 129C, 131; (ap 693 F.3d at 66 Hightower, complying munition without with [ch. for a plicant person” must be “suitable § governing 129C FID cards].... Holden, carry); publicly license to 269, § A mini- Mass. Gen. Laws ch. (explaining N.E.3d at 727-28 mum eighteen imprisonment months purpose licensing prerequi of the state’s 10(a) violation, required for section id. sites, including person” qualif the “suitable 10(a), § punishment ch. and enhanced ication).2 may imposed persons be who violate criminal prescribes penal- law also State “by this subsection means of a loaded fire- ties for certain unlawful conduct related to 10(n). arm,” § Imprisonment id. is not here, firearms. Pertinent section 10(h) mandatory for all section violations. (“Crimes Against Public Chapter 269 10(h)(1).3 § See id. Peace”) penal- criminal code state’s At the heart of Powell’s due carrying izes the unlawful statutory presumption claim is a particular weapons ammunition. prosecution arises criminal for a fire- 269, 10; § gener- Mass. Laws ch. see Gen. arms offense. 284, §§ ally 2014 Mass. Acts ch. 89-92 (new A legislation amending prosecution, in a criminal Mass. Gen. 10). relying justification upon his Laws ch. Criminal sanctions li- cense, on, imposed among appointment, prae- be others: admission to extensive, Comprehensive legislation chapter fairly new state arms within that is 2. amending variety regulations a of firearms incorporating requirements various for lawful August was enacted the Commonwealth in carrying relating appli to the ("An 2014. 2014 Mass. Acts ch. 284 Act cant, setting, usage. and the See Mass. Violence”). Relative to the Reduction of Gun 140, 1P; §§ ch. Gen. Laws 121-13 see also Among changes, other the new law will elimi- 284, (new legislation § 2014 Acts ch. Mass. 70 category nate the of Class B license in order provision, enacted an additional Mass. Gen. See, unitary carry. e.g., to create a license to 140, 131Q). § Laws ch. 24, 46-48, 60, 68, 71, §§ id. at 101. Our survey opinion law of Massachusetts in this produce 3. We note that the mere failure to generally adheres to the in effect at the laws upon may subject firearms license demand Moreover, time of Powell’s criminal conduct. firearm, person surrendering but summary Chapter our is no more than that. not, alone, standing such failure is criminal. requires 140 of General Massachusetts Laws 129C; 140, § See Mass. Gen. Laws ch. see licensing many activities in the Common- Jones, 361 N.E.2d at 1312. wealth, regulatory and the scheme for fire-

339 (1) knowingly that the accused able doubt law, authority, attorney at tice as (2) and, firearm, same; so until the firearm possessed prove shall he shall be that presumption provided definition legal met proved, Jones, authorized. 140, not so is 361 N.E.2d Chapter Jackson, 1311-13; at 174. 344 N.E.2d 278, (emphasis § 7 ch. Laws Gen. Mass. added). proce- an individual 7 criminal unless Pursuant to the section Accordingly, unlawfully possessing accused of of license standing provision, evidence dure at trial dem evidence produces a firearm defense at a as an affirmative operate licensure, presumes state law onstrating bears trial for which the accused criminal licensed. See Common not so that he is only: “Absence production the burden 758, Davis, 270 N.E.2d Mass. v. 359 wealth of the crime is not an element of a license 7 the section 925, (noting that 926 commonly used.... phrase is as that “allows provision procedure criminal [Rather,] on the defendant to the burden is is with that his conduct to show evidence of the defense. come forward with on proscription” to the exception in an however, the presented, If such evidence firearms). rule of 7 is a Section carrying persuade prosecution on the burden is in an applies that procedure state criminal beyond a reasonable of facts the trier beyond the prosecutions criminal array of not exist.” the defense does doubt context. firearms Jones, at 1311.4 361 N.E.2d framework, statutory Within appeal, direct considering Powell’s a section 10 held that long has the SJC stray from its no reason to the SJC saw welfare offense public offense is a firearms includes which against precedent, general prohibition established imposes excep both law for which the state carrying holding a firearm in Jones may apply exemptions tions and production on de- the burden placing Jackson, v. Commonwealth given case. the baseline due satisfies fendant (1976); N.E.2d Mass. id. at 1313. Winship. See demands under Davis, 1310-13; Jones, see N.E.2d at fuels the bulk allegiance that It is this that section (explaining at 926 270 N.E.2d process claim. Powell’s due 10(a) “pro measure regulatory very text argues first inherently dangerous scribing] certain contemplates of conviction the statute acts”). to secure a conviction In order an element of of license is absence offense, the Com 10 firearms a section for follow- He criticizes the SJC offense. beyond a reason- prove monwealth (2005); Common 1173-74 repeatedly the N.E.2d has affirmed 4. The state court Than, N.E.2d 442 Mass. v. wealth exposition both the elements Jones court’s 211; Ramirez, (2004); oper and licensure firearms offense of a state Tuitt, Mass. v. Commonwealth See Com ating affirmative defense. as an procedur This 1109-10 N.E.2d Humphries, 465 Mass. monwealth respect as an to license (2013); framework with al Commonwealth 658-59 N.E.2d even not unusual Eberhart, defense is affirmative N.E.2d 461 Mass. See, e.g., United among federal statutes. (2012); Jefferson, Mass. v. 461 Commonwealth 99, Matthews, 104-05 800, (2012); 749 F.3d 821, v. Com States 809-11 N.E.2d 965 seeking 787, (2014) Gouse, (holding that "a defendant 965 461 Mass. v. monwealth pertinent exception” under the 774, (2012); an benefit of 17 Commonwealth 788 n. N.E.2d coming 90, 707, the burden of “must shoulder n. statute N.E.2d 95 Young, Mass. 905 v. 453 excep Colon, regarding that with evidence 9, (2009); forward 449 v. 96 Commonwealth tion,” marijuana prescrip 412, (2007); including 207, a valid Com- 429 Mass. 866 N.E.2d 195, tion). Anderson, 834 445 Mass. v. monwealth 340 Jones, having “muddled rationale” of without ...

ing the effect license to card]”). recasting carry which he characterizes firearms or FID [an How- ever, an opinion essential element as affirmative defense its otherwise shows no intent Powell, therefore, urges us of licensure. to undo clear longstanding precedent plain language of the state to abide governing legal elements for a section recognize absence of license as statute and 10 firearms offense and the effect of the operative element firearms section 7 procedure provision criminal against were levied him. charges that criminal trial. See id. This, do. we cannot The same is true for the Fourth Amend- course, is, duty It of 'the There, discussion in ment Alvarado.. high meaning state court to construe emphasized possession SJC that mere of a statutes, including criminal state offenses firearm not serve as the sole factual procedure, and the has rules predicate for law enforcement’s reasonable dogmatic following expo been the Jones suspicion of necessary unlawful conduct sition for more than three decades. See constitutionally person seize and search a Smith, 497, v. 444 Commonwealth Mass. Alvarado, or property. 667 N.E.2d 1090, (2005); 829 N.E.2d 1092-93 Com 859-60. given This makes eminent sense Anderson, Mass.App.Ct. monwealth v. that an officer on the generally streets has 707, 1237, (same); 651 N.E.2d way no of knowing person’s whether a Wilbur, Mullaney see also possession” “mere comports a firearm 1881, 44 L.Ed.2d 95 S.Ct. regulatory with the state’s requirements. exposition represents very The SJC’s See, Couture, e.g., Commonwealth v. meaning of the statute intended (1990) (de- Mass. 552 N.E.2d bound, legislature, and we are duty merely fendant was in public “seen with a terms, no uncertain follow that state handgun” police “had no reason to precedent. Mullaney, See at 691 believe ... that the defendant had li no Marshall, 1881; & n. 753 F.3d carry firearm”); cense to Common at 19. Toole, wealth v. 389 Mass. Still, points to select state case (1983) (police “apparently never up ambiguity

law order to stir some on asked the defendant whether he had a criminal elements of a section 10 fire- carry license to a firearm” but instead arms offense. He cites two cases in which unlawfully searched the vehicle for one expressed posses- the SJC has that mere without basis for a suspi reasonable unlawful, sion of a firearm is not precedent And, cion of unlawful possession). conflicting that he sees as with the Jones SJC has made it clear that its Fourth White, line. See Commonwealth v. 452 Amendment decisions do not confuse or (2008); Mass. 891 N.E.2d 675 Com- otherwise process prec- alter its Jones due Alvarado, monwealth 423 Mass. Gouse, edent. See Commonwealth v. (1996). But, N.E.2d 856 as is often the Mass. n. 965 N.E.2d 774 case, context clarifies. (2012); Couture, 552 N.E.2d at 540-41. White, admittedly, The SJC in painted Ultimately, pre- Massachusetts with a broad recounting brush when possession sumed baseline of lawful afford- components proof for a firearms crime. ed to an individual for Fourth Amendment White, 891 N.E.2d at 678 (noting purposes away falls in a prosecu- criminal prove “the Commonwealth must tion where a person stands at trial accused knowingly possessed a firearm of unlawful firearms and makes Moreover, Apprendi proper range). of Court attempt produce to evidence no process the Winship stressed that due is- licensure. any that it faced not “raise ques- sue did any Powell, therefore, not does establish concerning power tion the State’s to ma- within conflict embedded irreconcilable prosecutor’s burden nipulate proof of law, might that case much less one state by, example, relying for on a presumption proge disregard Jones and its allow us rather than evidence to establish an ele- & n. 421 U.S. at 691 ny. Mullaney, See offense, by placing ment of an or the affir- (referencing “obvious 95 S.Ct. 1881 mative defense label on at least some ele- example “extreme subterfuge” as an of ments of traditional crimes.” 530 U.S. setting may warrant circumstances” that (internal 475, 120 S.Ct. 2348 citations and law); of state exposition state court aside omitted). Therefore, marks we quotation Pennsylvania, see also McMillan error, let objectively see no alone unrea- 5, 106 n. 91 L.Ed.2d S.Ct. U.S. error, in sonable the district court’s deci- (in subterfuge-type discrediting Apprendi Blakely to omit and from its sion “rejected] Supreme Court argument, analysis. process due in the Process anything that Due the view changes making from as prece Clause bars States Bound we are state that have the effect of in their criminal law meaning functionality dent on the prosecution making it easier for criminal procedure, law and the de convictions”). § 2254 for us this: inquiry obtain cisive that whether the SJC’s decision the state neglect- the SJC for Powell next faults as prescription law of licensure an affir “analyze indictment the effect only a defense burden of (imposing mative ingredients or ele- complaint listing the or production, not on a defen persuasion, crime,” he purports ments dant) procedural process accords with due Blakely. See required Apprendi the Federal is con under Constitution Jersey, 530 Apprendi v. New U.S. to, trary comprises unreasonable (2000); Blake- 147 L.Ed.2d S.Ct. of, application clearly established 296, 124 S.Ct. ly Washington, legitimate precedent. ques To this (2004). He sees the 159 L.Ed.2d 403 tion, weakly criticizes the SJC’s Blakely holdings as some- Apprendi and process analysis to the allegiance due charging language in a requiring how in his He contends that the SJC Jones. legal for modify instrument elements account appeal failed to direct law prescribed criminal offense tying .its due error Jones court’s in his criminal com- language points analysis “compar to the so-called process the ab- references plaint expressly test under Morrison v. ative convenience” Nei- of a and an FID card. sence license California, however, weight. decision, bears this ther persuaded are L.Ed. 664 We not 468-69, 477, Apprendi 530 U.S. See legal unreasonable er objectively 484-88, 490-96, 120 S.Ct. (evaluating ror. constitutionality proce- of a criminal statutes, court took its It is true the Jones set forth under the state dure Morrison, which discusses the indictment); Blakely, 542 cue from reason fairness” under due Apprendi “limits of (applying placing produc- the burden of jury required finding rule to hold that a beyond on an accused in a criminal case. fact a sentence tion for a that enhances Jones, at 1311-12. The state statutory maximum the standard 342 leaving the license at Id. It following guideposts home.” also court relied on (cid:127) the scant of erroneous considered risk con-

set forth in Morrison: viction, remarking nearly that: “We find it these, in that are substance The limits to believe impossible [the accused] enough to proved have the state shall it, subject- had such license but withheld to be just for make it of a ing mandatory himself to the risk proved what has been repel required to imprisonment” term of an ab- ‘[s]uch explanation, or or at least with excuse —“ game.does surd not contribute to search balancing convenience or upon truth....’” (quoting for Id. Williams v. knowledge the opportunities for Florida, 78, 82, 90 399 U.S. S.Ct. 26 will be to be shifting the burden found (1970)). end, 446 In the L.Ed.2d subjecting accuser without an aid to the court found unfairness in Jones “no [its] hardship oppression. the accused rule.” traditional burden, experience For a transfer Given section firearms of- that the held to must teach evidence be general prohibition fense remains a crime has at least a sinister effect inculpatory Commonwealth, in the it comes as no sur- times lacking, or if this at be there must prise to us that in the SJC Powell’s direct disparity any be in event manifest appeal by process decided to abide the due proof opportunity and convenience of Morrison, analysis in Jones. 291 U.S. Cf. as, instance, knowledge where a for 91-93, (holding S.Ct. 281 that the general applicable is to ev- prohibition state crime under was not review one of bring ery one who unable to himself “general prohibition” considering before range exception. within whether the evidence had “sinister Morrison, 88-89, U.S. at 54 S.Ct. significance” presumed relation (internal quotation marks brackets Moreover, culpability component). be- omitted) Jones, added); (emphasis see tween the time of Jones Powell’s di- Morrison). (quoting N.E.2d at 1312 After appeal, rect the Supreme prece- Court’s reaffirming that section 10 firearms has developed significantly dent in the line of general prohibition offense is field of law affirmative defenses that crimes, analyzed then the due the SJC satisfy fully baseline Winship demand. comparative question under the See, e.g., Taylor, Gilmore v. 508 U.S. Jones, convenience test. 361 N.E.2d at 124 L.Ed.2d 306 1312-13. Medina, (1993); 445-46, 505 U.S. 2572; Ohio, particular, the Jones court considered S.Ct. Martin v. 480 U.S. imposed the relative burdens procedural S.Ct. L.Ed.2d 267 York, provi- (1987); 7 criminal procedure the section Patterson v. New (i) sion, including licensing various L.Ed.2d 281 precedent authorities statewide issued and renewed This on affirmative de- (ii) licenses, produce provides ready an accused could evi- support fenses conclud- dence of without testifying license with process ruling SJC’s due compared prosecu- relative ease as to the Powell’s direct appeal objectively (iii) tor, Patterson, statutory the state’s scheme unreasonable. See 432 U.S. at merely license in required (holding pro- evidence of 97 S.Ct. 2319 that due court rather than when first confronted cess does not create “a im- constitutional operative countrywide, law enforcement order to criminal perative, avoid that a conviction based on “the minor mistake of disprove beyond State reasonable all every constituting any thority any and otherwise fails to offer fact doubt culpa compel related to the basis might defenses sound that us to disre- affirmative Martin, accused.”); an see also bility gard the own on the SJC’s assessment 238-35, 107 (uphold S.Ct. at 1098 practical workings 480 U.S. current li- the state ac placed that the ing state statute censing system, give alone let reason to production the cused burdens that the find SJC’s decision in the direct beyond a doubt for reasonable persuasion objectively was appeal unreasonable. defense). an self-defense as affirmative end, process ques the due neither addresses this clear Su Powell type tion here evokes constitutional precedent affirma preme governing Court Supreme standard established defenses, single nor cites tive even permits that fair lati Court amount of roughly comparable federal case in which in tude the exercise of sound decisional statutory state conviction secured under a Medina, judgment. See 505 at 445- U.S. analogous that construct is to Massachu McMillan, 2572; 112 S.Ct. at violating law was aside as setts set 2411; Dipaolo, 106 S.Ct. Sanna process due Winship demands.5 (1st Cir.2001). F.3d Even to the failing Powell next faults the SJC for question that “it a close whether extent age the computer account for the advent of error,” in not the state decision is such is test comparative under the convenience establishing for required the threshold forty nearly Because applied Jones. objectively application of fed unreasonable decision, passed years has since Jones Morgan, law under AEDPA. eral prosecutors that now Powell contends (internal quotation at 47 marks omit F.3d significant longer would no bear a burden ted). we hold that Powell’s Accordingly, having present partic- evidence that basis for provides due claim no firearm unlicensed. His under- ular § 2254 relief. granting habeas day standing of for a the modern burden licensing evidence prosecutor discover B. Amendment Second SJC’s, square with the however. does Gouse, next 2254 habeas relief (“reviewing] at 789 Powell seeks See convic- on the basis that his state firearms department’s police records and the right keep towns violate and bear departments or cities tions his may He have lived” arms under the Second Amendment. which claims; challenges comprise daunting “a two first presents would task [where] state age requirements alias minimum the defendant have assumed an (with different, equal or loca- related suspect or resided firearms licensure tions”). claim), au- and the second revisits ignores protection Powell also this state Tot, 319 U.S. in his direct affirmative defenses. 5. Powell contends (statute set that mere appeal ought 63 S.Ct. 1241 forth to have followed the "rational States, presump- possession of served as under Tot v. the firearm connection" test United "shipped proof transported L.Ed. 1519 tive it was or 319 U.S. 63 S.Ct. commerce,” Romano, foreign an ele- in interstate and United States or Romano, offense); 15 L.Ed.2d 210 ment of 2, 137-38, (statute However, set precedent is ill- 137 n. 86 S.Ct. 279 presence unexplained at the process question fitted to the due forth mere crime, illegal still as suffi- both of an alcohol served Massachusetts firearms because site distilling apparatus statutory proof or cient that the still cases involved state schemes custody, or under prosecutor proving from an ele- was "in his relieved control,” offense). crime; statutory ment of the neither his an element involved procedure provision prisoner’s federal because the pris the section 7 criminal claims prism. procedural failed to through a constitutional oner had meet a different both, requirement.” Thompson, nascent Coleman v. For stands on the 722, 729-30, precedent establishing U.S. Supreme Court (1991), part a lim- L.Ed.2d limited Amendment secures the Second Martinez, 1319; 132 S.Ct. at Rosenthal v. right to keep ited and bear arms individual O’Brien, (1st 676, Cir.), 713 F.3d 683 cert. of hearth and uncon- for self-defense home - denied, 434, U.S. -, Heller, 134 S.Ct. 187 militia. 554 organized nected to (2013). L.Ed.2d 292 McDonald, 570, 2783; 128 S.Ct. see (holding 3020 130 S.Ct. Massachusetts, “[o]nly one fully to applies the Second Amendment rights impaired by are a statute can whose regulation through the state and local question constitutionality, raise the of its Amendment). Fourteenth We address object can and he to the statute each in turn. applied to him.” Commonwealth v. Gor don, 354 Mass. 242 N.E.2d Qualifications Age 1. Minimum (1968); Brunette, see v. Commonwealth qualified applicant A who is least 361 Mass. N.E.2d age may years fifteen obtain FID charged A criminal defendant iswho with of a card for firearm violating a licensing challenge statute premises home or be at business but must underlying legislation “even twenty-one years age least' in order to license,” of an for application absence a publicly carry obtain a to firearm. license a judicial scope but the of that state review See Mass. Gen. ch. Laws Gordon, limits. has its 242 N.E.2d at 401. 131(d). 129B(1)(v), §§ Powell contends cases, In such its SJC restricts atten age-based unlawfully that this distinction particular statutory tion provisions to prohibition effects absolute an en “[an] actually implicated by the charged are law-abiding tire class of adults from bear activity to unlicensed and declines address arms,” namely, eigh those who are provisions represent that do not injury old, and, thus, years teen-to-twenty runs particular incurred virtue of the convic contrary Second to his Amendment and against tion secured that defendant. See however, Equal rights. We, Protection id. at 401-02. agree with the Commonwealth that these Here, the in Powell’s direct SJC

federal constitutional claims are barred appeal followed norm this state when de procedural default rule. clining to review the merits Powell’s

A federal court generally age-based will claims. Powell’s con criminal § not review a 2254 habeas claim when the publicly victions rested on his conduct of state court’s for that decision claim rests a carrying loaded firearm without authori on a ground independent zation, state law that is and his lack pre of licensure was question adequate federal to produce proof sumed due to his failure to support judgment. Ryan, Martinez on that affirmative When consid defense. - U.S. -, 1315-16, 182 ering Powell’s argument that his firearms (2012); L.Ed.2d 272 see Hodge v. Mendon convictions be reversed because the sa, (1st Cir.2013). 739 F.3d age qualification Ground minimum was unconstitu federalism, in comity tional, ed immediately procedur SJC noted that al default bars rule relief had not applied per habeas firearms “when a state court declined to address a mit had failed to demonstrate that he Quarterman, 310 Berkley Fed.Appx. licensure based have denied been would (5th Powell, denied, Cir.), his 672-73 cert. solely age. on See Jackson, N.E.2d at (citing 129-30 L.Ed.2d 3). ruled, court there- n. The state 169-70 (declining recognize futility ex fore, narrow constitutional that Powell’s ception procedural for the state default convictions was foreclosed. challenge rule). his id. cursory argument prejudice Powell’s recognized holding, In so By also untouched the vari- leaving fails. merit, had if the claims age-based even requirements securing ous eligibility remain firearms convictions would Powell’s carry weapon, license publicly loaded require- eligibility given intact the various challenge constitutional to the successful might unchallenged very ments left qualification state’s minimum alone age deny him a operate legitimately well necessarily illegal does not demonstrate license, being person. a such as “suitable” state confinement. See 28 U.S.C. 131(d). 140, § In Laws ch. See Mass. Gen. Allen, 154-55, 2254(a); § words, essentially held that the court other (for § petition, party a “[a] S.Ct. 2213 unconstitutional minimum purportedly the the standing challenge has constitution- alone, did requirement, standing age ality of a statute insofar as it has an rendering necessarily the injure by Powell rights”).6 on impact adverse his own unconstitutional. convictions themselves decision de-

We conclude that SJC’s we from Accordingly, are foreclosed of the federal clining to address merits constitu- reaching the merits of Powell’s an on ade- questions constitutional rested age qualifi- tional attacks on the minimum ground law independent state quate license obtaining publicly cation for our of constitu- that bars review Powell’s carry a firearm Massachusetts. claims. tional to excuse his state court Powell seeks 2. Procedure Provision Criminal futility on doctrine. relying default crimi- next revisits the section 7 Powell (federal Hodge, F.3d court See procedure provision, arguing nal may excuse court default where a on presumption infringes lack of license preju- petitioner shows cause and actual rights his Amendment as secured Second dice). misplaced, His howev- argument According and McDonald. Heller Although may apply the er. federal courts Powell, these decisions “restored in narrow circumstances futility doctrine innocence, invalidating presumption requirement, the federal exhaustion see impose crimi- [section statutes like Me., 7]” Attorney Allen v. General State of punishment “simply nal on for ex- (1st persons Cir.1996); F.3d Powell rights.” ercising their Second Amendment authority to no establish provides ought agrees The Commonwealth we has on the excuse bearing doctrine review, claim because to afford his de novo Indeed, cases not one of the inquiry. consti- is silent petition, SJC’s decision cites 2254 habeas he involves Clarke, significant tutional claim. See Clements our own research casts Cir.2010). (1st Even position. his 592 F.3d presumed legal doubt on See sundry arguments halting warrant extended attention. Powell’s other do not procedural wholly bar lack default merit AEDPA, range regulations without the constraints howev- state firearms without er, quickly endeavoring Powell’s claim crumbles. to draw Second Amendment lines for state legislative architecture. See attempts to launch a Sec Heller, 2783; 554 U.S. at attack on the method or ond Amendment McDonald, fact, 130 S.Ct. at 3047. which legislative the Common design along sojourn, its recognized criminally wealth has chosen to enforce its historically that states have executed fire He avers that licensing firearms scheme. regulation through general arms prohibi viability of his claim does not necessar Heller, public tion laws. safety ily “depend upon whether the Second 631-32, 128 U.S. at S.Ct. 2783. right Amendment extends outside the home,” reads the because he Heller/Mc Powell’s on Herrington reliance v. Unit- affirmatively preclud Donald decisions as States, (D.C.2010), ed 6 A.3d 1237 also general pro from “imposing] states There, does not help him. the D.C. Court hibition a firearm” against carrying Appeals reversed defendant’s convic- carrying firearm, from “proscribing] tion for unlawful of ammuni- alone, dangerous as an act inherently [that tion that a general prohibition rested on subject But, prosecution.”7 is] criminal criminal which statute in had accused in the midst of his iterations on the hold proving registration burden of McDonald, ings of Heller and Powell un exception or affirmative defense. 6 A.3d derscores that not “challenging] he is court, at Significant 1240-47. to the the licensing whole” nor arguing scheme as a unlawfully was convicted for “generally requiring that firearm owners possessing handgun ammunition in his registration to obtain licenses and cards home, and the court restricted of the reach Thus, violates the Amendment.” Second its holding to the statute of as conviction inspection, on close Powell’s claim is noth applied to the defendant. Id. at 1242-45. recapitulation more than a hollow of It held that “the guar- Second Amendment procedural his claim in due Second right possess antees a to in ammunition garb, Amendment its fate and is the same. the home that is right coextensive with the possess Nowhere its dual decisions to handgun there,” did the at usable id. Supreme legislative 1243, impugn designs Court and no to “expressed] opinion as comprise general that prohibition so-called whether the statute is [D.C.] constitutional public regulations welfare aimed at ad- other applications ap- [such when] dressing perceived dangers plied inherent possession and of handgun ammunition public risks surrounding possession home,” 1244, of outside the id. at n. 25. Her- loaded, Rather, operable rington, therefore, firearms. has no bearing on Pow- legislative Court attended to ell’s substance convictions which rest on publicly car- continuing and endorsed the viability of a a loaded firearm without a license.8 rying noted, 90, (2009); Davis, 7. As earlier the state firearms offense is N.E.2d 96 at public prohibition general welfare or of- designed' fense carrying "to control of 8. The analysis D.C. court also included in its protect public firearms so as to from the beyond numerous caveats home-versus- potential danger to [their] incident unlawful note, public It example, distinction. took for possession.” Jefferson, Commonwealth v. 461 Columbia, that in the of District the relative 821, 800, (2012) (inter- Mass. 965 808 N.E.2d producing licensing paperwork burden of re- omitted); quotation nal ellipses marks and see equipoise government mained in between the Young, Commonwealth v. 453 Mass. 905 Herrington, and the defense. 6 A.3d at 1245

347 Heller, given the 554 fundamentally, mediate self-defense. See U.S. More 635-36, 628-32, 2783; S.Ct. 128 Mc- pos firearm context for his public sphere Donald, 3036-46, 3050; 130 S.Ct. at see session, us with no basis provides 72; Booker, 644 Hightower, 693 F.3d concluding his could for that convictions n. 17. The neoteric F.3d 25 decisions safe haven Second even reach the only setting “us[ing] addressed arms boldly wrongly— Amendment. He —and home,” open hearth left in defense of and pronounces judicial future cases sort review “clearly right Heller established applied regulation, be other firearms encompasses one’s keep and bear arms firmly disavowed notion that an (Empha ‘person’ unrelated to home.” right individual has a constitutional “to flatly reject his read. original.) sis in We keep carry any weapon whatsoever in Together, Heller and McDonald establish any manner whatsoever for whatever impose legislation that states Heller, purpose.” See 554 U.S. at complete ban works McDonald, 2783; 128 S.Ct. 130 S.Ct. at home law- operable handguns Booker, 3047, 3050; see 644 F.3d at also 22.9 im- responsible for use in abiding, citizens Brown, States, (2012); 30; 222 v. n. see v. United 66 A.2d L.Ed.2d Heller Dis Columbia, states, (D.C.1949) (unlike only F.3d trict most (D.C.Cir.2011) (Heller II); City licensing authority relatively v. in the Ezell one exists (7th Cir.2011); Chicago, 651 F.3d 701-04 geographical area of the District of Co- small Reese, United States v. 627 F.3d 800-01 entity annually issues lumbia - denied, -, (10th Cir.2010), licenses). cert. markedly This is small number of (2011); 179 L.Ed.2d 1214 from the burden faced law en- different Marzzarella, Gouse, 614 F.3d United States forcement Massachusetts. denied, - U.S. -, (3d Cir.2010), cert. N.E.2d at 789. (2011); L.Ed.2d cf. (2d Bloomberg, Kwong 723 F.3d adopted two-part have

9. Several circuits - denied, -, Cir.2013), cert. evaluating a claim of Second framework (2014); 2696, 739 United S.Ct. 189 L.Ed.2d infringement post-Heller in the Amendment 1180, (8th Bena, v. 664 F.3d 1182-85 States Broadly speaking, some courts first con era. Skoien, Cir.2011); v. 614 F.3d United States imposes challenged law sider whether the (en banc). 638, (7th Cir.2010) See 639-43 scope within conduct falls burden'on Tyler County Dept., also v. Hillsdale Sheriffs guarantee his of the Second Amendment's as 308, (6th ("There Cir.2014) 775 F.3d 318 understood, so, torically next and if courts question of to the sound be number reasons judicial appropriate form of determine adopted by two-step approach” ness of [the] scrutiny apply (typically, ei some form of circuits.). various scrutiny scrutiny). strict intermediate ther See, City County e.g., v. San Jackson We far have entered the discourse on thus of Francisco, 953, (9th F.3d 962-63 Cir. occasions, 746 appeals mostly in direct of few 12, 2014), (U.S. filed, petition convictions, cert. Dec. have hewed federal firearms Filko, 14-704); 2014) (No. Drake v. 724 F.3d closely cautiously to circum Heller’s denied, (3d Cir.2013), 426, - U.S. 429 cert. holding. analysis United See scribed 2134, -, Carter, Cir.2014); (1st 134 L.Ed.2d 1124 S.Ct. 188 v. 8 752 F.3d States 865, (2014); 1, Gallagher, v. 712 F.3d Armstrong, Woollard v. 706 F.3d 3-8 United States -, denied, (4th Cir.), (1st Cir.2013), cert. 874-75 -U.S. and remanded on other vacated 422, (2013); 1759, -, L.Ed.2d 281 Nat'l grounds, 134 S.Ct. 187 134 S.Ct. 188 - U.S. Am., Alcohol, (2014) (Mem.) (citing Assn’n Inc. v. Bureau United L.Ed.2d 590 of of Rifle Tobacco, Firearms, Castleman, -, Explosives, & 700 F.3d - U.S. 134 S.Ct. v. States denied, - U.S. 1405, 185, (5th Cir.2012), (2014)); United States 194 cert. 188 L.Ed.2d 426 45, (1st 1364, Rehlander, -, (2014); 188 666 F.3d 48-50 Cir. 134 S.Ct. L.Ed.2d 296 v. Booker, 12, Greeno, 2012); v. 644 F.3d States v. 679 F.3d 518 United States United - denied, (1st Cir.2011), Cir.), denied, -U.S. -, (6th cert. cert. 133 S.Ct. 15-26 348 spoke Perhaps recognizing of a re- that we would

While the ject law-abiding, argument his that Heller and Mc- responsible of citizens right far, so Donald reach Powell nevertheless keep arms “in case of confronta- and bear invites us to hold that the limited of Second organized context tion” outside the right Amendment as articulated in Heller militia, Heller, at 554 U.S. 128 vicinity extends of home. outside McDonald, 2783; at S.Ct. see S.Ct. do We decline to so. 3036-42, 3048, say, it date did not and to said, fire- publicly carrying has yet weigh This has circuit on “the to defense of hearth and arm unconnected scope of the Second Amendment as to and unconnected to militia service is home carrying vicinity firearms of outside pro- right private a definitive of citizens any protec- the home without reference to tected under the Second Amendment. De- at Hightower, tion home.” 693 F.3d Compare among bate continues courts. far, 72. Thus we have held that indi- County Diego, v. 742 F.3d Peruta San right weap- “in carrying of vidual concealed (9th Cir.2014), request 1149-66 ons outside the home is distinct from [the] rehearing granted, 781 en banc F.3d emphasized in core interest Hellerand (9th Cir.2015) (No. 2015 WL 10- Heller, “[licensing carry- 56971); Filko, v. Drake 724 F.3d 430- weapons concealed is presumptively - (3d Cir.2013), denied, cert. Yet, lawful.” See id. at 72-74 & n. 8. -, 134 S.Ct. L.Ed.2d only meager Powell offers measure (2014); Woollard, 874-76; 712 F.3d at briefing, about one page, support his Madigan, Moore v. 702 F.3d 935-36 significant request. rather He cites two (7th Peruta, Cir.2012), with F.3d decisions in which the Seventh and Ninth (Thomas, J., Drake, dissenting); 1179-91 topic Circuits ventured into of putative (Hardiman, J., 724 F.3d at 444-46 dissent- rights in gun public sphere prompt- Moore, (Williams, ing); holistic, 702 F.3d at 944-49 ed substantive effect J., dissenting); see also United challenged States regulations before them. See Masciandaro, 458, 467-68, Moore, 933; Peruta, 638 F.3d 474- 702 F.3d 742 F.3d (4th Cir.2011).10 however, 1144.11 slight advocacy, Powell’s -, (2012); right 182 L.Ed.2d 175 described Heller extended somewhat E., (1st United Rene beyond States v. 583 F.3d setting. the hearth and home Cir.2009), denied, Drake, 430-31; Woollard, cert. F.3d (2010); 876; 175 L.Ed.2d 921 Kachalsky Cnty. F.3d West- cf. Hightower, F.3d 61. 693 chester, 81, (2d Cir.2012); 701 F.3d 89 see (de- Hightower, also 693 72 F.3d at n. 74 sanguine 10. We are not about Ninth Cir- clining public sphere question, to decide and cuit's characterization that a has "consensus” assuming deciding without some Second developed among regarding the circuits some publicly carrying Amendment interest in right limited Second to Amendment weapon). concealed keep operable and bear firearms outside purpose home for the of self-defense. See Peruta, Peruta, True, (county 11. See 742 F.3d at 1169-71 742 F.3d the Seventh regulation typical, law-abiding in barred citi- Circuit Moore held as the Ninth Circuit fearing personal posits, degree. safety zen for his ac- at least to a limited from See United Williams, license, (7th cessing "open a concealed-carry States v. 731 F.3d 693-94 Moore, Cir.2013) (Hamilton, J., carry” prohibited); concurring part was otherwise 702 in However, ("Illinois judgment). in the F.3d at 940 the remain- is the state that ing merely carrying three ready-to-use circuits identified maintains a flat ban on assumed analytical purposes, deciding, guns for without outside the home ... [n]ot even Massa- Illinois”); the limited Second Amendment individual flat as chusetts has so a ban see

349 AEDPA, he to it is candidate fails indicate how “con- coquetry proper makes his to, trary ap- or involved an unreasonable United States v. for waiver. See appellate of, (1st Cir.1990); Zannino, plication clearly established Federal F.2d cf. (“The Moore, parties and law” as determined Court. at 935 702 F.3d 2254(d). § us hun- not treated to 28 U.S.C. he does the amici curiae have Indeed* argument, any Supreme authority, nine briefs” cite to such pages dreds of Pinholster, rights U.S. -, on Amendment advocacy Second as Cullen - (2011), sphere.). public 179 L.Ed.2d 557 Kim- S.Ct. Morrison, melman v. 477 U.S. told, Sec- All we conclude that Powell’s (1986), 91 L.Ed.2d 305 S.Ct. provides ground- claim no ond Amendment Washington, Strickland v. his firearms ing setting aside (1984), 80 L.Ed.2d 674 to convictions. analysis with the at all. See grapple SJC’s (reminding at 3 that Su- Lopez, 135 S.Ct. Right to Amendment Counsel C. Sixth precedent as the preme Court serves ineffective assistance Powell’s relief). § for securing benchmark claim to his trial counsel’s counsel relates Accordingly, argument we his deem suppress to move to his statement failure Glacken, F.3d at 552. waived. arresting denied officer which he firearm, possessed a without that he had III. Conclusion The warnings. benefit of Miranda petition gives grounding no Powell’s rejected his constitutional claim setting aside his state firearms convictions. per allegedly that the deficient the basis Accordingly, we affirm the district court’s prej no formance of counsel caused Powell deny petition. his 2254 decision udice, there was evidence because police holding Powell a fire officers saw So ordered. attempted he to conceal

arm TORRUELLA, Judge, Circuit doing gun police and evade the while so. Dissenting. Jackson, Powell, 125; see 946 N.E.2d at (prosecution prove 344 N.E.2d view, my entitled habeas carry “knew that he was accused his due claim. based on prove a firearm” and not need adjudication of that claim The SJC’s pos a license to accused knew he lacked consisted of a reference to Commonwealth firearm).12 carry sess Jones, 372 Mass. that, be- support proposition agrees that

Although Powell “an of a license13 is not cause absence state court decision is reviewed under rian, also-Holden, N.E.2d (emphasizing 366 Mass. 26 N.E.3d at 726 absolutely The law of our circuit is that that Massachusetts law does is the functional prohibit handguns the home nor Massachusetts standard ban equivalent standard. ready-to-use public). of the federal Strickland firearms Guarino, (1st Cir. v. 293 F.3d Ouber . 12. The SJC decided the constitutional issue 2002). gen- standard which under the Massachusetts a Firearm Identifi- erally inquires 13. The difference between whether there has been serious card”) (“FID a is not cation Card license deficiency whether such sub- of counsel and analysis, important my is the difference deprived the nor performance “likely de- standard available, carrying. sim- possessing and For between an substantial fendant of otherwise having been plicity I to Powell as refer ground defence.” Commonwealth of Safe- crime,” against id. the Powell repeat element of the “without a li- burden-shifting by Furthermore, created device Massa- phrase. cense” one Laws sec- chapter chusetts General relevant provides: statutes “Whoever ... process. tion 7 accords with due Com- ... possesses a firearm ... com- without Powell, 459 Mass. monwealth plying with the ... provisions [FID card] — (2011), denied, N.E.2d cert. shall be punished imprisonment....” U.S. -, 182 L.Ed.2d 534 (em- 10(h)(1) 269, § Mass. Gen. Laws ch. (2012). The assessing task of whether this added). phasis The other relevant statute to, contrary was part the SJC’s decision provides: “Whoever ... in posses- has his of, application an or involved unreasonable ... ... sion a firearm ... having without clearly federal law established as deter- punished by a license ... shall be effect Court, Supreme mined see 28 10(a) imprisonment----” § Id. (emphasis 2254(d)(1), § is complicated by U.S.C. added). precise un- fact role of licensure Reading the text these counts der the Massachusetts scheme is unset- say statutes lack license is an tled, notwithstanding Jones’s statement. element of the might appear offense incon- If is an licensure affirmative defense sistent with the text of Massachusetts scheme, the Massachusetts that scheme chapter General Laws section but it with Supreme accord Court’s provides: is not. That section “A defen- doctrine on affirmative defenses. On the dant in a prosecution, relying criminal hand, if other licensure is an element of justification his ..., upon license shall subject the offense that is to proof by same; and, prove proved, until so presumption under the Massachusetts presumption scheme, shall be that he is not so that scheme must accord with the 278, § authorized. By ch. own Court’s doctrine on its presump- ” terms, my requirement opinion, tions. that a Jones and subse- cases, quent Powell’s, prove a license including applies only have to “[a] defen spoken clearly point, not on ... relying justification as the dant his upon recognized. added). district court this case (emphasis license.” Id. rely To Powell v. Tompkins, F.Supp.2d “justification,” aon license for a as that (D.Mass.2013). task, 374-75 My first generally term is understood criminal therefore, is to determine the role of licen- law, means to rely a license for a de- sure under Massachusetts scheme. 3.01(1) fense. See Model Penal Code (“[JJustification is an affirmative de-

I. Role of Licensure Under fense.”); (10th Dictionary Black’s Law Massachusetts Scheme ed.2014) “justification” (defining as “[a] I agree with the district court showing, court, of a sufficient reason text both of Powell’s criminal complaint why a way that, defendant acted in a in the and of the reason, statutes under which he was absence of would constitute the charged indicates that lack of license is offense with which the defendant element the offense. The charged”). titles of say To that a defendant must the relevant counts are “Firearm Without prove licensure in those instances when he Card, “Firearm, FID Possess” and Carry implies relies on a license for his defense added). (emphasis Without License.” that there be other instances which Likewise, descriptions defense, counts licensure viewed as a and in

charged “possessing with a firearm without license.” (cid:127) (which, may “authority” under section is the not the defendant those instances licensure), Otherwise, in equivalent there would of the defendant it. prove need to legislature to that lack of au- argue need for the tried to have been no O’Connell Ropes limiting language. See thority include the to create the relevant documents Jalberb, 407, 910 crime, 454 Mass. Gray requiring LLP v. of & was an element (2009) (recognizing N.E.2d The disa- by prosecution. SJC proof law statutes are con- Massachusetts Citing section greed. See id. at 423-24. Thus, surplusage). avoid strued to “authority said that be SJC alone, standing is not text of section defense, and, raised, if raised as a so is an ele- whether licensure probative of then bears the burden Commonwealth context particular in the ment or defense proving beyond a reasonable doubt the crimes. gun possession authority.” Id. at 424. absence cases, Moreover, distinguishable other Brunette, Similarly, Commonwealth Powell’s, exemplify how licensure from performing convicted of the defendant was defense, triggering might be raised as 6, 277 illegal an abortion. See 361 Mass. 7. Before introduc- application of section (1972). The relevant stat- N.E.2d cases, it be noted that ing these should “[w]hoever, provides, ute with intent general applicabil- 7 is a section of section woman, miscarriage of a un- procure the chapter governing ity, appearing in the her, lawfully administers to or advises or proceedings before procedure trial her, any poison, or prescribes for causes ch. 278. judgement. See Mass. Gen. Laws thing to drug, medicine or other noxious is, full title “Burden To The section’s ... ... punished taken her shall be be or' Admission To Practice Prove License Mass. Gen. Laws imprisonment....” and, Law,” entirety, Attorney at its Notably, statute does ch. 19. “A in a criminal provides, it any of these ac- say performing justification relying for his prosecution, au- a license” or “without tions “without license, appointment, admission to upon thority” constitutes the crime. As law, attorney or authori- practice as citing prose- section explained, “[i]n [a] same; and, ty, prove the until so shall c. s [the defendant] cution under that he proved, presumption shall be coming forward with had the burden of §' 7. is not so authorized.” Id. circumstances, he, in some evidence that O’Connell, the de- Commonwealth justification ... a defence or might have forgery. See 438 fendant was convicted apparent violation of acting 417, 422 Mass. 783 N.E.2d (as, example, in s 19 prohibition broad criminalizing Massachusetts statute The practice had a license to showing that he “Whoever, forgery provides: with intent to ” Massachusetts).... Brunette, medicine defraud, ... ... injure falsely forges pun- types documents] shall be [certain under which Powell the statutes Unlike by imprisonment....” ished Mass. Gen. convicted, issue was the statutes According § 1. to the SJC: Laws ch. did not include the and Brunette O’Connell forgery “The elements of the crime of are language. a license” It was thus (1) “without falsely making part all or of a docu- Powell’s, cases, unlike in in those instrument; clear with the intent to ment or that, licen- the defendant to invoke O’Connell, were N.E.2d at 424 n. defraud.” defense, omitted). sure, to do so as a (citation would need the fact that Despite he application of section 7. triggering prohibition the criminal does not mention short, determining gun if the elements of sible of a was a crime—not depended only gun possession the offense having asked the defendant the before complaint the criminal and stat- reading an FID search whether he had card—no utes, that lack I would hold of a license is probable exigent cause or circumstances an crime. But I not element of the do justify existed to the warrantless search. write on a clean slate: The SJC in Jones Id. 1268. Said the SJC: said that lack of a license is not an element empty The holster and ammunition offense. 361 N.E.2d at 1311. The the certainly found on the defendant created district court here noted Massachu- probable cause to believe that there was interpretation, setts state court but afford- a gun carrying the cab. But a .45 ground ed it no deference on the that it necessarily caliber revolver is not plain reading the the “def[ied] both possible crime. A crime carrying was relevant firearms statutes and Powell’s gun carry'firearms without a license to Powell, complaint.” criminal However, police ... did not learn F.Supp.2d at I conclude that that the defendant had no firearm iden- pre- SJC’s statement in Jones not does tification card until after the search. clude the determination that li- lack of a offense, cense is an element but I do (citation omitted). adopt reasoning. district court’s A Because Jones established that lack of a . federal court on ig- habeas review cannot presumed license could be to be an ele- high interpretation nore court’s of its offense, ment of implied whereas Toole because, simply state’s statutes in the fed- not, that it could Commonwealth v. Cou- eral opinion, interpretation court’s that de- ture, the argued Commonwealth plain meaning. agree fies the statutes’ I result, two cases to “an led ‘irrational’ interpretation Jones’s defies stat- namely, police that a officer in the street plain meaning, utes’ why but that is not I in determining gun show more that a refuse to follow Jones’s statement. In- unlawfully than prosecutor carried stead, I depart feel free to from Jones prove needs to to obtain a conviction.”

because, below, Ias detail since Jones was 407 Mass. 552 N.E.2d decided, spoken uniformly the SJC has not The attempted to reconcile the eases on whether the lack of a an license is as in the following.manner: element of the offense. Jones dealt with the allocation of bur- decided, After Jones was in Common- dens the context of a criminal trial. Toole, wealth v. 389 Mass. particular The burden to ... which (1983), presented SJC was with pertains Jones is not the burden of following pulling facts: After over the proof, merely but coming burden of truck, part defendant’s of a routine forward with evidence frisk, sufficient to raise a police officer found an empty hol- an issue of fact ... ster Where the defendant ammunition clip on the defen- every at trial has person. opportunity dant’s had Id. at 1265-66. This truck, respond to the prompted police charge Commonwealth’s search the revealing a firearm that the defendant carry- behind the seat. Id. at was unlawfully search, handgun, 1266. After the where the defendant was (cid:127) Card, asked if he had an FID only produce slip which he need of paper did that, not. Id. The SJC held indicating carry since there that he was licensed to showing was no police gun, had and where instead the defen- reason to believe that pos- effect, the defendant’s produces dant no evidence to that Referring n. 17. to Couture and Alva- jury presume are entitled to rado, a license the SJC in Gouse said: did not have indeed carry gun, Common- to cases, we that those concluded evi- present no additional wealth need presence mere of a firearm without point. This scenario prove to dence probable more did not furnish cause or who, hav- cry far from a defendant is a suspicion justify reasonable sufficient to with a merely public been seen police the seizure of an individual a any opportunity and without handgun, field; officer we were not asked license, a as to whether he has respond 10(a) requirements examine gunpoint out of his vehicle at is forced proof necessary the context of the at a subjected to an search.... invasive is, therefore, meaningful trial. There no handgun of a was possession The mere conflict between the manner in which a reasonable give not sufficient to rise to cases, those and the ones include [that illegal- that the defendant was suspicion consisting only the crime as two ele- gun, stop and the was ly carrying ments], the crime of unlawful describe Fourth improper therefore under possession respect of a firearm.... Our principles. Amendment rights for an individual’s (citation omitted). Id. at 540-41 against Fourth Amendment ... unrea- sonable searches and seizures on the Coutre, in v. Alva- After Commonwealth bearing street has no on the allocation of rado, the SJC reiterated: trial. burdens at Carry- Carrying gun a is not a crime. (or

ing a firearm without a license other (citations omitted). authorization) weapon Carrying is.... a recognize province I that it is the towel, bag, knap- in a or a concealed states to define crimes and defenses and to sack, ... is not a crime in example, But from I can allocate burdens. what in such suspected this State. The crime tell, simply provid has not Massachusetts only carrying circumstances can be the illegal of the offense-of ed a clear definition carry- weapon, of an unlicensed because possession. firearm I understand that not, weapon standing ing a concealed rights against un protecting individuals’ alone, an indication that criminal con- allocating bur reasonable searches contemplated. has occurred or is duct but I enterprises, dens at trial are distinct’ 423 Mass. permits how this distinction do not see Gouse, court, process, to

Then, 461 state consistent with due in Commonwealth v. (2012), a criminal statute to have three interpret N.E.2d 774 the SJC Mass. in one context but to have downplay significance elements attempted Alvarado, in another. See Johnson like two elements decisions Couture Gomez, CAL, 96-2913 1997 WL question to. have called into No. C which seemed (N.D.Cal. 1997) (not 703770, at *7 Oct. that lack of a license is Jones’s statement (9th There, Cir. reported), aff'd, F.3d not an element' of the offense. 1998) (“A court’s determination the elements of the state SJC concluded (2) characterize statutory provision does not simply are offense firearm, of the offense must nonetheless that statements to the an element and said (citing McMil comport process.”) with due contrary “do[ ] made in other contexts 79, 85-86, Pennsylvania, 477 regard to the lan v. diminish this conclusion with (1986)). 2411, 91 L.Ed.2d 67 Id. at essential elements of the crime.” what, Here, is confronted with fense. 450 So.2d at 856. The this court general first set out the my knowledge, is a novel scenario: The Court Florida determining statutory made lack of a license an rule for whether a legislature offense, exception whereas the state is an element of offense or element of exception there is an in the judiciary spoken ambiguously has defense: “[I]f clause, enacting party pleading noted that when the matter. It should be adversary has discussed states’ au- show that his is not within the Supreme Court but, if in thority exception; exception to define crimes and to allocate there be an clause, subsequent subsequent in has or a past, burdens the the discussion stat- ute, [sic], legislative, on the that often focused state’s is matter of defence [a] instance, by in judicial, party.” branch. For McMil- is to be shown the other Id. State, Pennsylvania, (quoting lan v. the Baeumel v. 26 Fla. 7 So. (1890)). said, Because, “in determining what facts must be in the Florida statute, proved beyond phrase having a reasonable doubt the the “without a li- legislature’s “exception” appeared definition of the ele- cense” in the “enact- clause,” usually dispositive: Robarge ments of the offense is the court held requires Due Process Clause the the ‘[T]he absence of license was an element of prosecution prove beyond to a reasonable the crime. Id. doubt all of the elements included the in Subsequent Robarge, leg- the Florida the of which the de- definition of offense statutory islature amended the scheme. ” McMillan, charged.’ fendant is 477 U.S. Today, statutory provides, one section “a 2411 (emphasis added person weapon carries a concealed who

McMillan) (quoting Patterson v. New ... commits misdemeanor.” Fla. Stat. York, 197, 210, 790.01(1). words, § In other the current (1977)). L.Ed.2d 281 outrightly statute carrying, bans without any mention of states,

I it that in licensure. Another statu- find notable other tory provides, subsection legislature’s judiciary’s “section [790.01] visions on subject Indeed, apply person does not to a accord. in licensed Gouse carry a weapon pursuant concealed ... SJC said licensure as an affirmative provisions s. 790.06.” charges fully defense to firearm “has been Id. 790.01(3). turn, § In jurisdictions.” independent in recognized other section 790.06(1) provides, “[a]ny person in com- support proposi- N.E.2d of this tion, pliance with the terms of license [a] [to SJC cited cases from both Florida carry] may carry a analysis weapon and Indiana. Id. An concealed these notwithstanding concealed firearm proves revealing. cases 790.06(1) provisions § s. 790.01.” Id. Florida, From the SJC cited Watt v. added). (emphasis independent These State, 31 (Fla.Dist.Ct.App.2010), So.3d 238 provisions provide the affirmative defense quoted which itself State Robarge, outright to the ban. (Fla.1984). Robarge So.2d 855 When State, Watt v. the Florida case cited in 1984, arose the relevant Florida statute Gouse, the SJC arose under this new provided, carry “Whoever shall ... (Fla.Dist. statutory scheme. 31 So.3d 238 ... pistol having without a license ... There, Ct.App.2010). the court said: guilty shall be of a misdemeanor....” Fla. 1987). (repealed Stat. 790.05 In Ro weap- Under the terms of the concealed statute, barge, argued the State licensure the state does not on/firearm should be considered an affirmative proving de- have the burden of the absence excep- of the crime. section of the same statute makes license as an element of a thereto, necessary tions it is not for the Rather, pertinent is proof of a license prosecution in the indictment or affidavit General- an affirmative defense. negate exception by stating such as a statutory exception, ly, for defendant does not come within the same.” license, to constitute a defense under J., (DeBruler, concurring part Id. at 667 law, exception “must be Florida dissenting part) (quoting Day enacting clause subsequent to clause State, 251 Ind. ... The license defense of a statute.”. (1968)). Because, statute, in the Indiana such, it clause.... As subsequent in the being language the “without licensed” defense, not an element is an affirmative clause, enacting found the dissent of the crime. argued prosecution should bear (footnote omitted) (citations at 242- Id. establishing the burden of that the defen- omitted) (quoting Robarge, So.2d consequently lacked a license. It dant 856). As current Massachusetts Washington called for v. State to be over- scheme— is akin to the old Florida scheme ruled. Id. very in the of a license is mentioned lack things Several about the Indiana that creates the criminal offense— section First, indepen- scheme are notable. in on Florida the SJC’s reliance Gouse proviso in the Indiana code is clearer dent misplaced. cases was in chapter than section 7 of its intent Gouse, cases, in As for Indiana the SJC to cast licensure as an affirmative defense. State, Taylor N.E.2d at cited gun It to pertains possession prosecu- (Ind.1991), which itself cit 578 N.E.2d 664 tions, appears chapter in the same as the State, 517 N.E.2d 77 Washington v. ed prohibition, explicitly re- substantive (Ind.1987). at issue in The Indiana statute alleging lack of a prosecution lieves the Washington provides, Taylor both 7, which, section as dis- license. Unlike carry handgun a ... person shall not “[A] above, applies only cussed when licensure § 35- being without licensed.” Ind.Code defense, proviso raised as a the Indiana 47-2-1(a). pro An section independent In explicitly makes licensure defense. vides, necessary allege ... to is not “[I]t addition, majority of the Indiana Su- The burden of the absence of a license.... SJC, Court, spoken unlike the has preme prove ... proof is on the defendant consistently respect with to the non-ele- 35-47-2-24(a). Id. he has a license....” Moreover, status of licensure. de- ment clarity consistency, spite this Washington, Supreme In Court of an affirmative proposition that licensure is that lack of a license was not Indiana held majority garnered only defense bare crime, posses- and that an element of the Taylor, in Supreme the Indiana Court of a license was a defense on which sion tell, and, court so far as I can no federal proof. the defendant bore the burden of to assess has been asked on habeas review later, in years at Four 79. comports with whether Indiana’s scheme Indiana, in a Taylor, Supreme Court óf process. due opinion, posses- reiterated that three-two

sion of a license was a matter criminal Given the clear text of Powell’s an affirmative statutes, to establish as complaint and the Massachusetts id.). (citing N.E.2d at 666 sup- defense. 578 on statutes gloss the unclear those SJC, following principle by comparison The dissent cited the and the plied (invited in by the jurisdictions Indiana law: an offense is created other SJC “When Massachusetts, Gouse), in I conclude that by and another statute or another statute Instead, at license is an element of the cases. See 946 N.E.2d 124. it a lack of gun a li- without possessing offense previous cited its discussion Jones. cense. Jones, Powell, and, reference, In SJC, upholding constitutionality conclusion, I

Having reached scheme, treatment of the Massachusetts relied on the the SJC’s decide whether contrary Wilbur, in Powell’s case was cases, that element Supreme Mullaney v. to, application involved an unreasonable U.S. 95 S.Ct. L.Ed.2d 508 of, clearly established federal law as deter- (1975), California, and Morrison v. mined Court. (1934). L.Ed. opinion simply say read the SJC’s would See 361 N.E.2d 1311-12. bore, proof the burden of on the that he Mullaney pro- held that it violates due reading, On that licensure element. require cess for a state to a defendant clearly contrary be to feder- opinion would all, it al law. After has been clear since In charged prove, with murder to in an at- place that a state on Winship re tempt charge manslaugh- to reduce the disproving the burden of the defendant ter, that passion he acted the heat of 358, 364, element of an offense. 397 U.S. provocation. sudden 1068,25 L.Ed.2d 368 90 S.Ct. holding comports 95 S.Ct. 1881. This with Nevertheless, court, district Pow- Winship. See 397 U.S.

ell, had a more charitable view of the Jones, relied on two SJC’s defense of the Massachusetts Mullaney. footnotes from See 361 N.E.2d F.Supp.2d at 376. Look- scheme See one, Supreme at 1311-12. In the Court past ing Jones’s erroneous statement recognized, “[m]any require do the States licensure is not an element but an affirma- defendant to show that there is ‘some evi- defense, the court held tive district Jones indicating dence’ that he acted in the heat permit and section the lack of a passion of before requiring prosecution the presumed. license element to be Id. In- negate this element proving the ab- deed, provides pre- section 7 that “the passion beyond sence of a reasonable sumption shall be that is not [a defendant] Nothing opinion doubt. in this is intended 278, § Mass. Gen. Laws ch. [licensed].” requirement.” to affect that U.S. presumption The defendant can rebut this (citations 702 n. 95 S.Ct. 1881 license, by adducing evidence of a so the omitted). quotation internal marks effect, in presumption, shifts the bur- production den of of licensure onto the footnote, In the other the Court said: defendant, leaving persua- the burden of Generally prosecu- in a criminal case prosecution. I analyze sion with the now disposition production de novo whether the tion bears both the burden SJC’s process comports Powell’s due claim with persuasion and the burden. In some clearly pre- established federal law of instances, however, it by pre- is aided sumptions. sumption permissible or a inference. (in procedural require These devices Analysis Opinion

II. of SJC’s Under (in case of a presumption) permit Presumption Federal Law inference) case of an fact the trier of A. SJC’s Discussion of Federal Pre- prosecution conclude has met sumption Law proof réspect its burden of with to the presumed by having or inferred fact sat- claim,

In rejecting process Powell’s due did not isfactorily the SJC cite facts. established other Thus, proper disparity the defen- if there is a ‘manifest they require in effect proof opportunity some evidence contest- convenience of for present dant to as, instance, knowledge, gener- or inferred for presumed the otherwise where they production prohibition applicable every al fact. Since shift one defendant, these devices bring to the who is unable to himself within the burden ” require- satisfy process range exception.’ (quoting certain due of an 281). ments. (citations

Id. at 702 n. 95 S.Ct. 1881 However, Jones’s invocation of Morrison omitted). words, Mullaney 'In while other shifting as the constitutional test for shifting onto the a state from prohibited production through presumption burden of proof the ultimate burden of problematic. pas- The first Morrison element, parts invoked those sage quoted by pertains the SJC to the explained that Mullaney where the Court shifting produc- limits on not the burden of to shift ruling permit would still a state its tion, but rather the ultimate burden of pro- initial the burden of to the defendant 88-89, proof. S.Ct. 281. duction, long persua- as the so burden passage And the quoted second prosecution. sion rested with the incomplete. excerpt SJC is The course, opinion disparity as the second focuses on con- Of SJC’s reflected above, quoted proof opportunity the Court venience of Mullaney passage con- process knowledge justifying pro- there are due a shift of the noted fact, said, ability In on the state’s to shift duction burden. Morrison straints burden, through pre- experience “For a transfer of the production burden of use articulating those con- must teach that the evidence held to be sumption. straints, curiously inculpatory signifi- looked has at least a sinister SJC Jones cance, or, by Mullaney, lacking, but if this at times be there not to the cases cited California, which in any disparity instead to Morrison v. must be event a manifest alleged provided proof opportunity classic state- in convenience of “[a] the SJC shifting knowledge....” of the due limits on Id. at 54 S.Ct. 281 ment” (citations omitted). Jones, production. quo- the burden of Jones’s selective quoted requirement N.E.2d at 1312. Jones the follow- tation overlooks the that “the inculpatory held to be at ing passage ha[ve] form Morrison: evidence significance.” a sinister This re- least these, in The limits are substance holding to the in quirement important was proved enough the state shall have to There, were Morrison. the defendants just make it for the defendant to be making convicted under a statute it a repel rpoved what has been required possess crime to land if one was both a explanation, or or at with excuse [sic] citizenship. ineligible noncitizen and for upon balancing least that of conven- The held Id. 54 S.Ct. 281. opportunities ience or of the for knowl- unconstitutional a scheme under which the of will be .edge shifting the burden of prove state needed to found to be an aid to the accuser without land, citizenship or leaving proof of either subjecting hardship the accused to eligibility citizenship to the defendant. oppression. 97-98, Id. at 54 S.Ct. 281. The Court (correct Morrison, original) (quoting in explained: 281). 88-89, 54 S.Ct. The SJC U.S. agricultural by land one quote continued on to Morrison: “Such a Possession of citizenship production] may ineligible of be not shown to be shift the burden [in clear,” carries with it not even a id. at 93 S.Ct. 2357. Some an act that is criminality. prove pos- cases, To such Gainey, hint like of United States hardly more is to take without session U.S. 85 S.Ct. 13 L.Ed.2d 658 support of indict- step forward (1965), applied the announced in test first wrongdo- of probability ment. No such States, 463, 467, Tot v. United of the naked fact of use or ing grows out (1943) 87 L.Ed. 1519 that there a belief that the occupation as to awaken must be “rational connection between if guilty he fails to occupier user or pre fact proved fact and the ultimate explana- excuse or come forward with sumed.” legislature go good The tion. pause I to review the estab- here test (a or in way raising presumption) There, government lished Tot. proof, but there changing the burden urged the Court to hold that two alterna- proved must be so are limits. What governed validity pre- tive tests to what is inferred the case of related sumptions. “The first is that there be a as to be at least a presumption a true rational connection between the facts warning signal according to the teach- proved and fact presumed; the second experience. ings comparative produc- that of convenience (citations and inter- Id. at 54 S.Ct. 281 Tot, ing evidence of the fact.” ultimate omitted). nal marks other quotation But, 63 S.Ct. ac- words, support holding, its the Court cording to Tot: disparity in focused less on the conven- proof, and more on the facts that ience opinion We are of these are not possession of land —the evidence held be independent tests but that the first is inculpatory (1) signifi- lacked a sinister — controlling and the second but a corol- cance, pos- was not related decisions, lary. statutory Under our citizenship sessor’s status. presumption cannot be sustained if there be no rational connection between the Presumption B. Federal Law proved pre- fact and the ultimate fact looked not to Had SJC Jones sumed, if the inference of the one from Morrison, to the cases cited Mulla- but proof arbitrary of the other is because of proposition ney support itself lack of connection between the two in there are due constraints on the experience. common ability to even the state’s shift burden of production, the would have had the Id. at many 63 S.Ct. 1241. Of the States, guidance of Barnes United statement, support cases cited in of this 37 L.Ed.2d 380 the most recent was Morrison v. Califor- (1973) States, Turner v. 396 and United nia. See id. at 468 n. 63 S.Ct. To 642, 24 U.S. 90 S.Ct. L.Ed.2d 610 reiterate, SJC Jones focused exclu- Mullaney, 421 U.S. at 702 n. sively regard- on what Morrison had said 31, 95 S.Ct. 1881. ing comparative of producing convenience evidence, ignored what Morrison had The Barnes commenced with “a Court Turner;] decisions[, regarding said the need for a connection including review of ... proved between the innocuous fact and the validity which have considered the under culpable presumed. light criminal fact of Tot’s the Due Process Clause of law presumptions,” “comparative at statement conven- U.S. S.Ct. corollary” ience” teaching concluded that test “but the “con- “[t]he altogether trolling” cases is not “rational connection” test —a [reviewed] that, above, reflects the tional statement as noted connection” but fail “reasonable doubt.” very reasoning of Morrison itself—-the comparative sole focus on conven- SJC’s principle Another from Barnes and Tot misguided.

ience was explains relationship between a pre- Barnes, sumption and a pro- de shift of the Another case reviewed facto States, duction burden. The Barnes Court said: Leary purported v. United to ex- pound on Tot’s “rational connection” test It practical is true that effect of by saying “presumption that a must be instructing jury inference [an] regarded ‘arbitrary,’ as ‘irrational’ or ... is to shift the burden of going for- unconstitutional, hence unless it can at ward with evidence to the defendant.... States, least be said with substantial assurance In Tot v. United the Court stated presumed likely that the fact is more than that the of going burden forward may proved not to flow from the fact on which not freely be shifted to the defendant. 6, 36, held, however, depend.” it is made to Tot that where there ais 1532, 23 (emphasis S.Ct. L.Ed.2d 57 “rational connection” between the facts added). footnote, In a Leary proved presumed and the fact in- or that, ferred, said since the inference at issue failed it is permissible to shift the bur- satisfy likely gloss going this “more than not” den of forward to the defendant. test, on Tot’s “rational connection” the Barnes, 412 U.S. at 846 n. 93 S.Ct. question Court did not need to reach the (citations omitted). presumption being

whether a used Barnes, Finally, after in County Court prove satisfy an element of a crime must Allen, Cty. v. Ulster U.S. only likely the “more than not” gloss, (1979), L.Ed.2d 777 the Su- but also the “reasonable doubt” standard. prerne Court offered another discussion of Id. at 36 n. 1532. Both the final 89 S.Ct. law, presumption explaining that presump- Barnes, case reviewed Turner v. Unit- permissive mandatory. tions can be States, ed and the Barnes case itself noted allow, presumptions Permissive but do not that Leary question reserved the whether require, the trier of fact to infer “ele- likely the “more than not” or “reasonable (i.e., mental fact” the existence of an ele- doubt” standard- controlled criminal crime) proof by ment of the from cases, they question too left open but prosecution “evidentiary” aof “basic” or by concluding presumptions fact. Id. at Be- S.Ct. 2213. review stringent satisfied even the more permissive presumption cause such a “does Barnes, “reasonable doubt” standard. See proof, not shift the burden of it affects the 2357; Turner, 396 application ‘beyond a reasonable S.Ct. 642. if, only doubt’ standard under the facts of case, survey way This much is clear from the there is no rational the trier if presumption permitted.” these cases: cannot satis- could make the connection test, fy mandatory Tot’s “rational connection” it A pre- 99 S.Ct. 2213. unconstitutional; however, “may if presumption sumption, can affect not standard, satisfy strength the “reasonable doubt” it of the ‘no reasonable doubt’ below, placement is constitutional. As I of that bur- discussed burden but also the den; presumption play they conclude that the at here it tells the trier that he or test, upon proof fails the “rational connection” so I find the elemental fact of the fact, murky need not wade into the water sub- at least unless the defendant basic merging presumptions that “ra- with some evidence to survive has come forward Moreover, the Id. persuasion. burden of connection between presumed

rebut that “the burden determined district court facts.” Id. the two by a minimal be met production [could] of that the explain went on The Court is, production mere of showing —that can mandatory presumptions class of be. Consequently, the court ana- Id. license.” “presumptions between divided further permis- ifas it was lyzed presumption production of the burden merely that shift agree I sive, mandatory. than Id. rather defendant, following the satisfaction to the court’s anal- much of the district with this persuasion the ultimate burden of which ysis. presump- prosecution; to the returns ways the dis- point, part I with At this proof burden of entirely shift the tions that the Allen Court held Again, trict court. at n. 16. With re- to the defendant.” presumptions “affects the permissive that that mandatory presumptions spect ‘beyond a reasonable of the application production, only the burden shift thus raise a consti- standard”'—-and doubt’ ... the extent [the] that “[t]o Court said if, “only the facts tutional extremely an low imposes presumption concern— case, way the is no rational there being satisfied production e.g., burden — permit- make the connection trier could may be that its ‘any’ evidence—it well 2213. 442 U.S. at ted.” permis- than that of a greater is no impact concluded, Here, court “[o]ne the district inference, proper it be sive ... reasonable can rest assured what it as such.” Id. To decide analyze a ra- fact could indeed ascertain case, trier of involved type presumption proved the facts tional connection between Court, will jury “the instructions said the firearm) (the carrying of a possession although their in- controlling, be generally (the presumed fact absence of and the to the may require recourse terpretation license).” Powell, F.Supp.2d at 377. un- and the cases decided statute involved words, according to the district In other der it.” Id. court, of conduct re- performance one’s Presumption lack rationally implies at Issue a license quiring C. The respect all to the of a license. With due presumption play I now turn to the court, alleged connection is not district had a case. Because Powell Powell’s error, one rational. To see this need trial, jury giv were bench no instructions performing act of sur- consider that result, the district court resort en. As a suggest surgeon gery does not text of section 7 and the ed to both the license. lacks a medical Powell, surrounding caselaw. argues pre- The district court The Commonwealth F.Supp.2d 376-77. that, use of a sumption until under review makes provides 7 — which read section lack of a “rational connection” between the proved, presumption “the licensure failure, in the and the defendant’s is not license [a defendant] [li shall be to come forward censed],” charges, § 7 face of firearms Mass. Gen. Laws ch. (West 2014) added)—to license, rather than the tabl with evidence of (emphasis es Powell, pur- of a firearm. This mandatory mere presumption. ish a troubling, to rational connection is Looking ported to sur- F.Supp.2d Couture, theory, in the caselaw, the least. Under this rounding such as say fail- charges, a defendant’s 7’s face of murder district court. determined section give, defense could rise only the ure to raise alibi mandatory presumption shifted that he was at the presumption production not the ultimate burden scene of the crime. To hold that lack of a presumed can be UNITED America,

license from the defen- STATES Appellee, dant’s failure to raise the issue at trial is to elide the distinction between an element of subject a crime to proof by presumption Miguelito ARROYO-BLAS, and an affirmative defense. The funda- Defendant, Appellant. mental principle that one is innocent until proven guilty would be weak if indeed No. 13-1613. present one’s failure to a defense was suffi- United States Appeals, Court of imply proof guilt. cient to First Circuit. Under the Antiterrorism and Effective April (“AEDPA”), Death Penalty Act of 1996 ruling cannot clearly contradict es- tablished federal law. 28 U.S.C. 2254(d)(1). unclear, If federal law is

if ruling the state is consistent with federal

law, then the state wins and habeas

granted. Id. As I am perceive unable to

reading of the disposition SJC’s of Powell’s

due claim that does not contradict

clearly established federal law as deter- Court,

mined I conclude

that the AEDPA standard has been met.

To Powell, the extent the SJC in Jones,

through reference to elevated the

“comparative convenience” test over the test,

“rational adjudication connection” “contrary Further,

was to” federal law. SJC,

the extent again through Jones,

reference to found the “rational

connection” test satisfied presump- issue,

tion at adjudication involved an application”

“unreasonable of federal law.

I respectfully dissent.

Case Details

Case Name: Powell v. Tompkins

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 15, 2015

Citation: 783 F.3d 332

Docket Number: 13-1310

Court Abbreviation: 1st Cir.