Lead Opinion
Petitioner Aaron Powell was convicted on several state charges including unlawful possession of a loaded firearm, see Mass. Gen. Laws ch. 269, §§ 10(a), (h), (n), and his convictions were affirmed by the Massachusetts Supreme Judicial Court (SJC), see Commonwealth v. Powell,
I. Background
We are required to presume that the SJC’s factual rendition is correct and, therefore, we draw our description of the facts from that opinion. 28 U.S.C. § 2254(e); see Gunter v. Maloney,
Late one night in August 2008, two Boston police officers were on routine patrol in Roxbury when they noticed a brooding crowd at an intersection. The two dozen or so youths appeared to be aligned into three groups, with two groups on one side of the street and the third on the other side of the street. People were yelling and pointing back and forth at one another, but the crowd grew quiet as the officers drove by in their unmarked cruiser. One officer noticed a young man (later identified as Powell) who was walking nearby but set apart from the groups. Powell looked away when he saw the officers and moved his hands toward his waist in a manner which the officers viewed as consistent with concealing or retrieving contraband. Powell walked past the crowd and then began to run.
A foot chase ensued, and while en route, one officer saw Powell clutching something in his right hand. The officer next saw the handle of a gun in Powell’s hand and twice commanded Powell to drop it. Powell continued to flee, and when attempting to climb a fence to evade the officers, he dropped a .22 caliber revolver to the ground. Powell then ran along the fence and into a darkened garage. He soon emerged with both hands clenched in fists, charging at one of the officers. The officer moved out of the way, Powell knocked into the second officer, and the foot chase continued down the street. The police soon caught up with Powell and arrested him. The loaded revolver was retrieved from where Powell had attempted to scale the fence. Without first issuing Miranda warnings, an officer asked him why he ran and whether he had a license for the firearm. Powell replied that he did not have a firearm.
The Commonwealth of Massachusetts charged Powell with several state crimes. He waived his right to a jury trial and, after a bench proceeding, was convicted of publicly carrying a firearm without a license, Mass. Gen. Laws ch. 269, § 10(a); doing so while the firearm was loaded, id. ch. 269, § 10(n); and possessing ammunition without a permit, id. ch. 269, § 10(h). He was sentenced to eighteen months of incarceration and three years of probation for the firearms and ammunition offenses.
Pertinent here, the SJC rejected Powell’s due process challenge to the Commonwealth’s failure to present evidence that he lacked a firearms license. Id. at 124. Following its own precedent, the court held that the accused has the burden of producing evidence of a license as an affirmative defense in prosecutions for firearms possession and carrying offenses. Id. It also held that this state procedure is in accord with due process because the burden of proving an element of the crime did not shift to the defendant. Id. (relying on Jones,
In addition, the SJC declined to assess the merits of Powell’s claim that state law age restrictions on young adults’ ability to obtain a license to publicly carry a firearm violate the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. Id. at 128. The state court viewed his age-based challenges as procedurally barred, essentially because Powell did not demonstrate that his lack of licensure was based on the minimum age requirement alone. Id. at 129-30. The SJC excused Powell’s failure to raise his Second Amendment arguments in a pretrial motion because the issues were not available to him until after McDonald was decided. Id. at 127.
Lastly, the SJC rejected Powell’s ineffective assistance of counsel claim, which was based on trial counsel’s failure to file a motion to suppress Powell’s pre-Miranda statement to the police denying that he had possessed a gun. The court concluded that any allegedly deficient legal representation caused Powell no prejudice due to other evidence of his consciousness of guilt. Id. at 125.
Powell later pursued a § 2254 habeas petition in federal district court, which was denied. Powell v. Tompkins,
II. Discussion
Securing relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is an onerous task. See Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-1219, codified at 28 U.S.C. § 2254; see also White v. Woodall, - U.S. -,
The Supreme Court’s precedent, not that of the circuit courts, serves as the benchmark for securing § 2254 relief. Lopez v. Smith, - U.S. -,
A. Due Process
It is bedrock that the Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship,
To determine the appropriate lens that governs Powell’s due process claim, we begin, as we must, with Massachusetts law. See, e.g., Medina v. California,
To lawfully possess and carry a firearm within the Commonwealth a person must either obtain a license to do so or be exempt from the normal licensing requirements. See generally Mass. Gen. Laws ch. 140, §§ 121-131P; Hightower v. City of Boston,
State law also prescribes criminal penalties for certain unlawful conduct related to firearms. Pertinent here, section 10 of Chapter 269 (“Crimes Against Public Peace”) of the state’s criminal code penalizes the unlawful possession or carrying of particular weapons and ammunition. Mass. Gen. Laws ch. 269, § 10; see generally 2014 Mass. Acts ch. 284, §§ 89-92 (new legislation amending Mass. Gen. Laws ch. 269, § 10). Criminal sanctions may be imposed on, among others:
(a) Whoever, except as provided or exempted by statute, knowingly has in his possession ... a firearm, loaded or unloaded, as defined in [ch. 140, § 121] without either:
(1) being present in or on his residence or place of business; or
(2) having in effect a license to carry firearms issued under [ch. 140, § 131 governing licensure];
(h)(1) Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with [ch. 140 § 129C governing FID cards]....
Mass. Gen. Laws ch. 269, § 10. A minimum of eighteen months imprisonment is required for a section 10(a) violation, id. ch. 269, § 10(a), and enhanced punishment may be imposed for persons who violate this subsection “by means of a loaded firearm,” id. § 10(n). Imprisonment is not mandatory for all section 10(h) violations. See id. § 10(h)(1).
At the heart of Powell’s due process claim is a statutory presumption that arises in criminal prosecution for a firearms offense.
A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to praetice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.
Mass. Gen. Laws ch. 278, § 7 (emphasis added). Accordingly, unless an individual standing accused of unlawfully possessing a firearm produces evidence at trial demonstrating licensure, state law presumes that he is not so licensed. See Commonwealth v. Davis,
Within this statutory framework, the SJC has long held that a section 10 firearms offense is a public welfare offense that imposes a general prohibition against carrying a firearm for which both exceptions and exemptions may apply in any given case. Commonwealth v. Jackson,
In considering Powell’s direct appeal, the SJC saw no reason to stray from its established state precedent, which includes the holding in Jones that the state law placing the burden of production on a defendant satisfies the baseline due process demands under Winship. See id. at 1313. It is this allegiance that fuels the bulk of Powell’s due process claim.
Powell first argues that the very text of the statute of conviction contemplates that absence of license is an element of the offense. He criticizes the SJC for follow
It is, of course, the duty of 'the state high court to construe the meaning of state statutes, including criminal offenses and rules of procedure, and the SJC has been dogmatic in following the Jones exposition for more than three decades. See Commonwealth v. Smith,
Still, Powell points to select state case law in order to stir up some ambiguity on the criminal elements of a section 10 firearms offense. He cites two cases in which the SJC has expressed that mere possession of a firearm is not unlawful, precedent that he sees as conflicting with the Jones line. See Commonwealth v. White,
The SJC in White, admittedly, painted with a broad brush when recounting the components of proof for a firearms crime. See White,
The same is true for the Fourth Amendment discussion in Alvarado.. There, the SJC emphasized that mere possession of a firearm may not serve as the sole factual predicate for law enforcement’s reasonable suspicion of unlawful conduct necessary to constitutionally seize and search a person or property. Alvarado,
Powell, therefore, does not establish any irreconcilable conflict embedded within state case law, much less one that might allow us to disregard Jones and its progeny. See Mullaney,
Powell next faults the SJC for neglecting to “analyze the effect of the indictment or complaint listing the ingredients or elements of the crime,” as he purports is required by Apprendi and Blakely. See Apprendi v. New Jersey, 530 U.S. 466,
Bound as we are by state precedent on the meaning and functionality of state criminal law and procedure, the decisive § 2254 inquiry for us is this: whether the SJC’s decision that the state law prescription of licensure as an affirmative defense (imposing only a burden of production, not persuasion, on a defendant) accords with procedural due process under the Federal Constitution is contrary to, or comprises an unreasonable application of, clearly established Supreme Court precedent. To this legitimate question, Powell weakly criticizes the SJC’s allegiance to the due process analysis in Jones. He contends that the SJC in his direct appeal failed to account for that court’s error in Jones in tying .its due process analysis to the so-called “comparative convenience” test under Morrison v. California,
It is true that the Jones court took its cue from Morrison, which discusses the “limits of reason and fairness” under due process for placing the burden of production on an accused in a criminal case. See Jones,
The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.
For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister effect or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception.
Morrison,
In particular, the Jones court considered the relative procedural burdens imposed by the section 7 criminal procedure provision, including that (i) various licensing authorities statewide issued and renewed licenses, (ii) an accused could produce evidence of license without testifying and with relative ease as compared to the prosecutor, and (iii) the state’s statutory scheme merely required evidence of license in court rather than when first confronted by law enforcement in order to avoid criminal conviction based on “the minor mistake of leaving the license at home.” Id. It also considered the scant risk of erroneous conviction, remarking that: “We find it nearly impossible to believe that [the accused] had such a license but withheld it, subjecting himself to the risk of a mandatory term of imprisonment” — “ ‘[s]uch an absurd game.does not contribute to a search for truth....’” Id. (quoting Williams v. Florida,
Given that the section 10 firearms offense remains a general prohibition crime in the Commonwealth, it comes as no surprise to us that the SJC in Powell’s direct appeal decided to abide by the due process analysis in Jones. Cf. Morrison,
Powell next faults the SJC for failing to account for the advent of the computer age under the comparative convenience test applied in Jones. Because nearly forty years has passed since the Jones decision, Powell contends that prosecutors now would no longer bear a significant burden in having to present evidence that a particular firearm is unlicensed. His understanding of the modern day burden for a prosecutor to discover licensing evidence does not square with the SJC’s, however. See Gouse,
In the end, the due process question here evokes the type of constitutional standard established by the Supreme Court that permits a fair amount of latitude in the exercise of sound decisional judgment. See Medina,
B. Second Amendment
Powell next seeks § 2254 habeas relief on the basis that his state firearms convictions violate his right to keep and bear arms under the Second Amendment. He presents two claims; the first challenges the minimum age requirements for state firearms licensure (with a related equal protection claim), and the second revisits
1. Minimum Age Qualifications
A qualified applicant who is at least fifteen years of age may obtain an FID card for possession of a firearm in the home or business premises but must be at least' twenty-one years of age in order to obtain a license to publicly carry a firearm. See Mass. Gen. Laws ch. 140, §§ 129B(1)(v), 131(d). Powell contends that this age-based distinction unlawfully effects “[an] absolute prohibition of an entire class of law-abiding adults from bearing arms,” namely, those who are eighteen-to-twenty years old, and, thus, runs contrary to his Second Amendment and Equal Protection rights. We, however, agree with the Commonwealth that these federal constitutional claims are barred by the procedural default rule.
A federal court generally will not review a § 2254 habeas claim when the state court’s decision for that claim rests on a state law ground that is independent of the federal question and adequate to support the judgment. Martinez v. Ryan, - U.S. -,
In Massachusetts, “[o]nly one whose rights are impaired by a statute can raise the question of its constitutionality, and he can object to the statute only as applied to him.” Commonwealth v. Gordon,
Here, the SJC in Powell’s direct appeal followed this state norm when declining to review the merits of Powell’s age-based claims. Powell’s criminal convictions rested on his conduct of publicly carrying a loaded firearm without authorization, and his lack of licensure was presumed due to his failure to produce proof on that affirmative defense. When considering Powell’s argument that his firearms convictions must be reversed because the minimum age qualification was unconstitutional, the SJC immediately noted that Powell had not applied for a firearms permit and had failed to demonstrate that he
In so holding, the SJC recognized that even if the age-based claims had merit, Powell’s firearms convictions would remain intact given the various eligibility requirements left unchallenged that might very well operate to legitimately deny him a license, such as being a “suitable” person. See Mass. Gen. Laws ch. 140, § 131(d). In other words, the court essentially held that the purportedly unconstitutional minimum age requirement, standing alone, did not necessarily injure Powell by rendering the convictions themselves unconstitutional. We conclude that the SJC’s decision declining to address the merits of the federal constitutional questions rested on an adequate and independent state law ground that bars our review of Powell’s constitutional claims.
Powell seeks to excuse his state court default by relying on the futility doctrine. See Hodge,
Powell’s cursory argument on prejudice also fails. By leaving untouched the various eligibility requirements for securing a license to publicly carry a loaded weapon, a successful constitutional challenge to the state’s minimum age qualification alone does not necessarily demonstrate illegal state confinement. See 28 U.S.C. § 2254(a); Allen,
Accordingly, we are foreclosed from reaching the merits of Powell’s constitutional attacks on the minimum age qualification for obtaining a license to publicly carry a firearm in Massachusetts.
2. Criminal Procedure Provision
Powell next revisits the section 7 criminal procedure provision, arguing that the lack of license presumption infringes on his Second Amendment rights as secured under Heller and McDonald. According to Powell, these decisions “restored the presumption of innocence, invalidating statutes like [section 7]” that impose criminal punishment on persons “simply for exercising their Second Amendment rights.” The Commonwealth agrees that we ought to afford his claim de novo review, because the SJC’s decision is silent on this constitutional claim. See Clements v. Clarke,
Powell attempts to launch a Second Amendment attack on the method or legislative design by which the Commonwealth has chosen to criminally enforce its firearms licensing scheme. He avers that the viability of his claim does not necessarily “depend upon whether the Second Amendment right extends outside the home,” because he reads the Heller/McDonald decisions as affirmatively precluding states from “imposing] a general prohibition against carrying a firearm” and from “proscribing] carrying a firearm, alone, as an inherently dangerous act [that is] subject to criminal prosecution.”
Nowhere in its dual decisions did the Supreme Court impugn legislative designs that comprise so-called general prohibition or public welfare regulations aimed at addressing perceived inherent dangers and risks surrounding the public possession of loaded, operable firearms. Rather, the Court attended to legislative substance and endorsed the continuing viability of a range of state firearms regulations without endeavoring to draw Second Amendment lines for state legislative architecture. See Heller,
Powell’s reliance on Herrington v. United States,
Perhaps recognizing that we would reject his argument that Heller and McDonald reach so far, Powell nevertheless invites us to hold that the limited Second Amendment right as articulated in Heller extends outside the vicinity of the home. We decline to do so.
This circuit has yet to weigh in on “the scope of the Second Amendment as to carrying firearms outside the vicinity of the home without any reference to protection of the home.” Hightower,
All told, we conclude that Powell’s Second Amendment claim provides no grounding for setting aside his state firearms convictions.
C. Sixth Amendment Right to Counsel
Powell’s ineffective assistance of counsel claim relates to his trial counsel’s failure to move to suppress his statement in which he denied to the arresting officer that he had possessed a firearm, without the benefit of Miranda warnings. The SJC rejected his constitutional claim on the basis that the allegedly deficient performance of counsel caused Powell no prejudice, because there was evidence that the police officers saw Powell holding a firearm and that he attempted to conceal a gun and evade the police while doing so. Powell,
Although Powell agrees that the state court decision is reviewed under AEDPA, he fails to indicate how it is “contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by the Supreme Court. 28 U.S.C. § 2254(d). Indeed* he does not cite to any Supreme Court authority, such as Cullen v. Pinholster, - U.S. -,
III. Conclusion
Powell’s petition gives no grounding for setting aside his state firearms convictions. Accordingly, we affirm the district court’s decision to deny his § 2254 petition.
So ordered.
Notes
. Powell also was convicted for resisting arrest, which is not a part of this habeas petition. Additionally, although it appears from the record that Powell has now completed his sentence, he filed his petition challenging the legality of his firearms convictions before his sentence concluded. We find that his petition is neither moot nor beyond the jurisdictional reach of 28 U.S.C. § 2254(a). See Spencer v. Kemna,
. Comprehensive new state legislation amending a variety of firearms regulations was enacted by the Commonwealth in August 2014. 2014 Mass. Acts ch. 284 ("An Act Relative to the Reduction of Gun Violence”). Among other changes, the new law will eliminate the category of Class B license in order to create a unitary license to carry. See, e.g., id. at §§ 24, 46-48, 60, 68, 71, 101. Our survey of Massachusetts law in this opinion generally adheres to the laws in effect at the time of Powell’s criminal conduct. Moreover, our summary is no more than that. Chapter 140 of Massachusetts General Laws requires licensing for many activities in the Commonwealth, and the regulatory scheme for firearms within that chapter is fairly extensive, incorporating various requirements for lawful possession and carrying relating to the applicant, the setting, and the usage. See Mass. Gen. Laws ch. 140, §§ 121-131P; see also 2014 Mass. Acts ch. 284, § 70 (new legislation enacted an additional provision, Mass. Gen. Laws ch. 140, § 131Q).
. We note that the mere failure to produce a firearms license upon demand may subject the person to surrendering the firearm, but such failure is not, standing alone, criminal. See Mass. Gen. Laws ch. 140, § 129C; see Jones,
. The state court has affirmed repeatedly the Jones court’s exposition on both the elements of a state firearms offense and licensure operating as an affirmative defense. See Commonwealth v. Humphries,
. Powell contends that the SJC in his direct appeal ought to have followed the "rational connection" test under Tot v. United States,
. Powell’s other sundry arguments for halting the procedural default bar wholly lack merit and do not warrant extended attention.
. As earlier noted, the state firearms offense is a public welfare or general prohibition offense designed' "to control the carrying of firearms so as to protect the public from the potential danger incident to [their] unlawful possession.” Commonwealth v. Jefferson,
. The D.C. court also included in its analysis numerous caveats beyond the home-versus-public distinction. It took note, for example, that in the District of Columbia, the relative burden of producing licensing paperwork remained in equipoise between the government and the defense. Herrington,
. Several circuits have adopted a two-part framework for evaluating a claim of Second Amendment infringement in the post-Heller era. Broadly speaking, some courts first consider whether the challenged law imposes a burden'on conduct that falls within the scope of the Second Amendment's guarantee as historically understood, and if so, courts next determine the appropriate form of judicial scrutiny to apply (typically, some form of either intermediate scrutiny or strict scrutiny). See, e.g., Jackson v. City and County of San Francisco,
We thus far have entered the discourse on few occasions, mostly in direct appeals of federal firearms convictions, and have hewed closely and cautiously to Heller’s circumscribed analysis and holding. See United States v. Carter,
. We are not sanguine about the Ninth Circuit's characterization that a "consensus” has developed among the circuits regarding some limited right under the Second Amendment to keep and bear operable firearms outside the home for the purpose of self-defense. See Peruta,
. See Peruta,
. The SJC decided the constitutional issue . under the Massachusetts standard which generally inquires whether there has been serious deficiency of counsel and whether such substandard performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian,
Dissenting Opinion
In my view, Powell is entitled to habeas based on his due process claim.
The SJC’s adjudication of that claim consisted of a reference to Commonwealth v. Jones,
I. Role of Licensure Under Massachusetts Scheme
I agree with the district court that the text both of Powell’s criminal complaint and of the statutes under which he was charged indicates that lack of a license is an element of the offense. The titles of the relevant counts are “Firearm Without FID Card, Possess” and “Firearm, Carry Without License.” (emphasis added). Likewise, the descriptions of the counts against Powell repeat the “without a license” phrase. Furthermore, one of the relevant statutes provides: “Whoever ... possesses ... a firearm ... without complying with the [FID card] provisions ... shall be punished by imprisonment....” Mass. Gen. Laws ch. 269, § 10(h)(1) (emphasis added). The other relevant statute provides: “Whoever ... has in his possession ... a firearm ... without ... having in effect a license ... shall be punished by imprisonment----” Id. § 10(a) (emphasis added).
Reading the text of these counts and statutes to say that lack of a license is an element of the offense might appear inconsistent with the text of Massachusetts General Laws chapter 278, section 7, but it is not. That section provides: “A defendant in a criminal prosecution, relying for his justification upon a license ..., shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.” Id. ch. 278, § 7. By its own terms, the requirement that a defendant prove a license applies only to “[a] defendant ... relying for his justification upon a license.” Id. (emphasis added). To rely on a license for a “justification,” as that term is generally understood in criminal law, means to rely on a license for a defense. See Model Penal Code § 3.01(1) (“[JJustification is an affirmative defense.”); Black’s Law Dictionary 977 (10th ed.2014) (defining “justification” as “[a] showing, in court, of a sufficient reason why a defendant acted in a way that, in the absence of the reason, would constitute the offense with which the defendant is charged”). To say that a defendant must prove licensure in those instances when he relies on a license for his defense implies that there may be other instances in which licensure is not viewed as a defense, and in
Moreover, other cases, distinguishable from Powell’s, exemplify how licensure might be raised as a defense, triggering application of section 7. Before introducing these cases, it should be noted that section 7 is a section of general applicability, appearing in the chapter governing trial procedure and proceedings before judgement. See Mass. Gen. Laws ch. 278. The section’s full title is, “Burden To Prove License or' Admission To Practice as Attorney at Law,” and, in its entirety, it provides, “A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.” Id. §' 7.
In Commonwealth v. O’Connell, the defendant was convicted of forgery. See
Similarly, in Commonwealth v. Brunette, the defendant was convicted of performing an illegal abortion. See
Unlike the statutes under which Powell was convicted, the statutes at issue in O’Connell and Brunette did not include the “without a license” language. It was thus clear in those cases, unlike in Powell’s, that, were the defendant to invoke licensure, he would need to do so as a defense, triggering application of section 7.
After Jones was decided, in Commonwealth v. Toole,
The empty holster and ammunition found on the defendant certainly created probable cause to believe that there was a gun in the cab. But carrying a .45 caliber revolver is not necessarily a crime. A possible crime was carrying a gun without a license to carry'firearms ... However, the police did not learn that the defendant had no firearm identification card until after the search.
Id. (citation omitted).
. Because Jones established that lack of a license could be presumed to be an element of the offense, whereas Toole implied that it could not, in Commonwealth v. Couture, the Commonwealth argued that the two cases led to “an ‘irrational’ result, namely, that a police officer in the street must show more in determining that a gun is unlawfully carried than a prosecutor needs to prove to obtain a conviction.”
Jones dealt with the allocation of burdens in the context of a criminal trial. The particular burden to which ... Jones pertains is not the burden of proof, but merely the burden of coming forward with evidence sufficient to raise an issue of fact ... Where the defendant at trial has had every opportunity to respond to the Commonwealth’s charge that the defendant was unlawfully carrying a handgun, where the defendant need only produce that slip of paper indicating that he was licensed to carry that gun, and where instead the defendant produces no evidence to that effect,the jury are entitled to presume that the defendant indeed did not have a license to carry the gun, and the Commonwealth need present no additional evidence to prove that point. This scenario is a far cry from a defendant who, having merely been seen in public with a handgun, and without any opportunity to respond as to whether he has a license, is forced out of his vehicle at gunpoint and subjected to an invasive search.... The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.
Id. at 540-41 (citation omitted).
After Coutre, in Commonwealth v. Alvarado, the SJC reiterated:
Carrying a gun is not a crime. Carrying a firearm without a license (or other authorization) is.... Carrying a weapon concealed in a towel, a bag, or a knapsack, for example, ... is not a crime in this State. The suspected crime in such circumstances can only be the carrying of an unlicensed weapon, because carrying a concealed weapon is not, standing alone, an indication that criminal conduct has occurred or is contemplated.
Then, in Commonwealth v. Gouse,
In those cases, we concluded that the mere presence of a firearm without more did not furnish probable cause or reasonable suspicion sufficient to justify the seizure of an individual by a police officer in the field; we were not asked to examine the requirements of § 10(a) in the context of the proof necessary at a trial. There is, therefore, no meaningful conflict between the manner in which those cases, and the ones [that include the crime as consisting of only two elements], describe the crime of unlawful possession of a firearm.... Our respect for an individual’s rights under the Fourth Amendment ... against unreasonable searches and seizures on the street has no bearing on the allocation of burdens at trial.
Id. (citations omitted).
I recognize that it is the province of the states to define crimes and defenses and to allocate burdens. But from what I can tell, Massachusetts simply has not provided a clear definition of the offense-of illegal firearm possession. I understand that protecting individuals’ rights against unreasonable searches and allocating burdens at trial are distinct’ enterprises, but I do not see how this distinction permits a state court, consistent with due process, to interpret a criminal statute to have three elements in one context but to have only two elements in another. See Johnson v. Gomez, No. C 96-2913 CAL,
I find it notable that in other states, the legislature’s and the judiciary’s visions on this subject accord. Indeed, in Gouse the SJC said that licensure as an affirmative defense to firearm charges “has been fully recognized in other jurisdictions.”
From Florida, the SJC cited Watt v. State,
Subsequent to Robarge, the Florida legislature amended the statutory scheme. Today, one statutory section provides, “a person who carries a concealed weapon ... commits a misdemeanor.” Fla. Stat. § 790.01(1). In other words, the current statute outrightly bans carrying, without any mention of licensure. Another statutory subsection provides, “section [790.01] does not apply to a person licensed to carry a concealed weapon ... pursuant to the provisions of s. 790.06.” Id. § 790.01(3). In turn, independent section 790.06(1) provides, “[a]ny person in compliance with the terms of [a] license [to carry] may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01.” Id. § 790.06(1) (emphasis added). These independent provisions provide the affirmative defense to the outright ban.
Watt v. State, the Florida case cited by the SJC in Gouse, arose under this new statutory scheme.
Under the terms of the concealed weapon/firearm statute, the state does not have the burden of proving the absenceof a license as an element of the crime. Rather, proof of a license is pertinent only as an affirmative defense. Generally, for a statutory exception, such as a license, to constitute a defense under Florida law, the exception “must be in a clause subsequent to the enacting clause of a statute.”. ... The license defense is in the subsequent clause.... As such, it is an affirmative defense, not an element of the crime.
Id. at 242- (footnote omitted) (citations omitted) (quoting Robarge,
As for Indiana cases, the SJC in Gouse,
In Washington, the Supreme Court of Indiana held that lack of a license was not an element of the crime, and that possession of a license was a defense on which the defendant bore the burden of proof.
Several things about the Indiana scheme are notable. First, the independent proviso in the Indiana code is clearer than section 7 of chapter 278 in its intent to cast licensure as an affirmative defense. It pertains only to gun possession prosecutions, appears in the same chapter as the substantive prohibition, and explicitly relieves the prosecution of alleging lack of a license. Unlike section 7, which, as discussed above, applies only when licensure is raised as a defense, the Indiana proviso explicitly makes licensure a defense. In addition, a majority of the Indiana Supreme Court, unlike the SJC, has spoken consistently with respect to the non-element status of licensure. Moreover, despite this clarity and consistency, the proposition that licensure is an affirmative defense garnered only a bare majority of the Indiana Supreme Court in Taylor, and, so far as I can tell, no federal court has been asked on habeas review to assess whether Indiana’s scheme comports with due process.
Given the clear text of Powell’s criminal complaint and the Massachusetts statutes, the unclear gloss on those statutes supplied by the SJC, and the comparison to other jurisdictions (invited by the SJC in Gouse), I conclude that in Massachusetts,
Having reached this conclusion, I must decide whether the SJC’s treatment of that element in Powell’s case was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. Powell would read the SJC’s opinion simply to say that he bore, the burden of proof on the licensure element. On that reading, the opinion would clearly be contrary to federal law. After all, it has been clear since In re Winship that a state may not place on the defendant the burden of disproving an element of an offense.
Nevertheless, the district court, in Powell, had a more charitable view of the SJC’s defense of the Massachusetts scheme See
II. Analysis of SJC’s Opinion Under Federal Presumption Law
A. SJC’s Discussion of Federal Presumption Law
In rejecting Powell’s due process claim, the SJC did not cite any Supreme Court cases. See
Mullaney held that it violates due process for a state to require a defendant charged with murder to prove, in an attempt to reduce the charge to manslaughter, that he acted in the heat of passion on sudden provocation.
In the other footnote, the Court said:
Generally in a criminal case the prosecution bears both the production burden and the persuasion burden. In some instances, however, it is aided by a presumption or a permissible inference. These procedural devices require (in the case of a presumption) or permit (in the case of an inference) the trier of fact to conclude that the prosecution has met its burden of proof with réspect to the presumed or inferred fact by having satisfactorily established other facts.Thus, in effect they require the defendant to present some evidence contesting the otherwise presumed or inferred fact. Since they shift the production burden to the defendant, these devices must satisfy certain due process requirements.
Id. at 702 n. 31,
Of course, as reflected in the second Mullaney passage quoted above, the Court noted that there are due process constraints on the state’s ability to shift the burden of production through use of presumption. In articulating those constraints, the SJC in Jones curiously looked not to the cases cited by Mullaney, but instead to Morrison v. California, which the SJC alleged provided “[a] classic statement” of the due process limits on shifting the burden of production. Jones,
The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been rpoved [sic] with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowl.edge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.
Id. (correct in original) (quoting Morrison,
However, Jones’s invocation of Morrison as the constitutional test for shifting the burden of production through presumption is problematic. The first Morrison passage quoted by the SJC pertains to the limits on shifting not the burden of production, but rather the ultimate burden of proof. See
Possession of agricultural land by one not shown to be ineligible for citizenshipis an act that carries with it not even a hint of criminality. To prove such possession without more is to take hardly a step forward in support of an indictment. No such probability of wrongdoing grows out of the naked fact of use or occupation as to awaken a belief that the user or occupier is guilty if he fails to come forward with excuse or explanation. The legislature may go a good way in raising (a presumption) or in changing the burden of proof, but there are limits. What is proved must be so related to what is inferred in the case of a true presumption as to be at least a warning signal according to the teachings of experience.
Id. at 90,
B. Federal Presumption Law
Had the SJC in Jones looked not to Morrison, but to the cases cited by Mullaney itself in support of the proposition that there are due process constraints on the state’s ability to shift even the burden of production, the SJC would have had the guidance of Barnes v. United States,
The Barnes Court commenced with “a review of ... decisions[, including Turner;] which have considered the validity under the Due Process Clause of criminal law presumptions,”
I pause here to review the test established by Tot. There, the government urged the Court to hold that two alternative tests governed the validity of presumptions. “The first is that there be a rational connection between the facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact.” Tot,
We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.
Id. at 467-68,
Another case reviewed by Barnes, Leary v. United States, purported to expound on Tot’s “rational connection” test by saying that a “presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”
This much is clear from the survey of these cases: if a presumption cannot satisfy Tot’s “rational connection” test, it is unconstitutional; and if a presumption can satisfy the “reasonable doubt” standard, it is constitutional. As discussed below, I conclude that the presumption at play here fails the “rational connection” test, so I need not wade into the murky water submerging presumptions that survive “rational connection” but fail “reasonable doubt.”
Another principle from Barnes and Tot explains the relationship between a presumption and a de facto shift of the production burden. The Barnes Court said:
It is true that the practical effect of instructing the jury on [an] inference ... is to shift the burden of going forward with evidence to the defendant.... In Tot v. United States, the Court stated that the burden of going forward may not be freely shifted to the defendant. Tot held, however, that where there is a “rational connection” between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant.
Barnes,
Finally, after Barnes, in County Court of Ulster Cty. v. Allen,
The Court went on to explain that the class of mandatory presumptions can be. further divided between “presumptions that merely shift the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution; and presumptions that entirely shift the burden of proof to the defendant.” Id. at n. 16. With respect to mandatory presumptions that shift only the burden of production, the Court said that “[t]o the extent ... [the] presumption imposes an extremely low burden of production — e.g., being satisfied by ‘any’ evidence — it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such.” Id. To decide what type of presumption is involved in a case, said the Court, “the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it.” Id.
C. The Presumption at Issue
I now turn to the presumption at play in Powell’s case. Because Powell had a bench trial, no jury instructions were given. As a result, the district court resorted to both the text of section 7 and the surrounding caselaw. See Powell,
At this point, I part ways with the district court. Again, the Allen Court held that permissive presumptions “affects the application of the ‘beyond a reasonable doubt’ standard”' — -and thus raise a constitutional concern — “only if, under the facts of the case, there is no rational way the trier could make the connection permitted.”
The Commonwealth argues that the presumption under review makes use of a “rational connection” between the lack of a license and the defendant’s failure, in the face of firearms charges, to come forward with evidence of a license, rather than the mere possession of a firearm. This purported rational connection is troubling, to say the least. Under this theory, in the face of murder charges, a defendant’s failure to raise an alibi defense could give, rise to the presumption that he was at the
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state ruling cannot contradict clearly established federal law. 28 U.S.C. § 2254(d)(1). If federal law is unclear, or if the state ruling is consistent with federal law, then the state wins and habeas is not granted. Id. As I am unable to perceive a reading of the SJC’s disposition of Powell’s due process claim that does not contradict clearly established federal law as determined by the Supreme Court, I conclude that the AEDPA standard has been met. To the extent that the SJC in Powell, through reference to Jones, elevated the “comparative convenience” test over the “rational connection” test, the adjudication was “contrary to” federal law. Further, to the extent that the SJC, again through reference to Jones, found the “rational connection” test satisfied by the presumption at issue, the adjudication involved an “unreasonable application” of federal law.
I respectfully dissent.
. The difference between a Firearm Identification Card (“FID card”) and a license is not important to my analysis, nor is the difference between possessing and carrying. For simplicity I refer to Powell as having been