UNITED STATES of America, Appellee, v. Henry PETERSON, Defendant, Appellant.
No. 99-2294.
United States Court of Appeals, First Circuit.
Decided Dec. 5, 2000.
101
Heard Oct. 2, 2000.
III.
Conclusion
In an era in which Congress has seen fit to narrow the doorway to habeas relief, fairness concerns dictate that courts take care not to apply the new law woodenly. So it is here: under the circumstances of this case, the petitioner‘s Rule 33/Rule 35 motion, notwithstanding its sua sponte recharacterization by the district court, cannot be considered a “first” habeas petition within the meaning of AEDPA. And if that motion was not a “first” petition, the application at issue here cannot be a “second” petition.
We need go no further. For these reasons, we reverse the order of dismissal, vacate the transfer order, and remand the case to the district court for further proceedings consistent with this opinion. The petitioner‘s provisional application for leave to file a second or successive habeas petition, prepared at our direction, is deemed withdrawn.
Reversed and remanded.
Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Terrence P. Donnelly, Assistant United States Attorney, were on brief, for appellee.
Before TORRUELLA, Chief Judge, LYNCH and LIPEZ, Circuit Judges.
LYNCH, Circuit Judge.
Henry Peterson was convicted of five federal narcotics and firearms offenses on August 27, 1999. Peterson challenges the federal prosecution as vindictive and a violation of equal protection under the Fourteenth Amendment because it was based on the same underlying criminal activities as a prior Rhode Island prosecution. Peterson also claims that the trial judge abused his discretion by not reopening the
In addition, Peterson challenges the district court‘s application of the Sentencing Guidelines, which, based on his offense level, his criminal history, and the court‘s finding that three prior convictions qualified him as an “armed career criminal” under
We agree with Peterson that one of his offenses does not qualify as a “violent felony” for purposes of
BACKGROUND
Henry Peterson was arrested in Cranston, Rhode Island on February 4, 1998, while in possession of five grams of crack cocaine. A consented-to search of his apartment revealed marijuana, drug paraphernalia, several firearms, and ammunition. A search of Peterson‘s girlfriend‘s apartment uncovered more marijuana and an additional firearm. The girlfriend, Tanya Baptiste (who had also been arrested), claimed that the drugs and gun found in her apartment both belonged to Peterson.
In state court, Peterson pled nolo contendere to possession with intent to distribute controlled substances, firearm possession after conviction for a crime of violence, and possession of stolen goods. He received a ten-year sentence, seven years of which were suspended.
Federal prosecutors, apparently dissatisfied with the length of the state sentence, then sought indictment under federal narcotics and firearms law. At trial, the defense rested without offering evidence. The court alerted the jury that closing statements were forthcoming, recessed, and then held a charging conference. At that belated point, Peterson‘s counsel informed the court that Peterson now wished to testify on his own behalf, despite having decided not to testify during his case-in-chief. The district judge refused to reopen the evidence to allow Peterson to testify.
Peterson was ultimately convicted on all five counts, including two counts of
DISCUSSION
We first dispose of Peterson‘s trial-related claims and then address his claims relating to sentencing.
I. Vindictive Prosecution Claim
Peterson admits that prosecution on both state and federal charges is constitutionally permissible under the dual sovereignty doctrine. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985). He also acknowledges that the federal government‘s Petite policy1 confers no substantive rights upon de-
Peterson thus premises his objection to his federal prosecution on either prosecutorial vindictiveness or an equal protection violation. Because Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error. See United States v. Gary, 74 F.3d 304, 313 (1st Cir.1996); United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.), cert. denied, 523 U.S. 1122 (1998). We presume that the prosecutor acted in good faith, and did not prosecute in a vindictive manner. See United States v. Bassford, 812 F.2d 16, 19 (1st Cir.1987). To rebut this presumption and obtain an evidentiary hearing on the issue,2 the defendant must allege facts (1) tending to show selective prosecution, and (2) raising a reasonable doubt about the propriety of the prosecution‘s motive. See Gary, 74 F.3d at 313.
Peterson fails to make either showing. First, to show selective prosecution, Peterson must show “that [he] was prosecuted while others similarly situated were not.” Bassford, 812 F.2d at 20. Peterson argues that his girlfriend Tanya Baptiste was similarly situated, yet faced no federal prosecution. However, Baptiste was a small time pawn to Peterson‘s king: he directed the narcotics distribution operation, while she merely participated in it. Thus, she was not similarly situated to Peterson. Second, Peterson has not shown that the government‘s prosecution was in bad faith. He claims that the government acted with the sole motive of prolonging his sentence. But such motive is a legitimate one for successive prosecution. See United States v. Stokes, 124 F.3d 39, 45 (1st Cir.1997); see also Bassford, 812 F.2d at 19 (impermissible conditions are those such as race, religion, or the desire to prevent the exercise of the defendant‘s constitutional rights); id. at 20 (“[T]he conduct of two independent sovereigns does not lend itself to the concept of vindictive prosecution.“) (citations omitted). On these facts, we cannot find any error, much less the plain error required for us to act on a waived claim.
Alternatively, Peterson suggests that his federal prosecution violated the Equal Protection Clause. It is a violation of equal protection for the government to base prosecution on an unjustifiable standard or arbitrary classification. See Gary, 74 F.3d at 313. But there is no evidence of either here.
We therefore find no error in Peterson‘s prosecution.
II. Failure to Reopen the Evidence to Permit Peterson to Testify
At trial, after the defense rested, the court told the jury to expect closing arguments within the hour and went into recess; after recess, the court held a brief charging conference. At the end of the conference, counsel for Peterson told the court that Peterson now wished to testify on his own behalf. Counsel noted that, until now, Peterson had agreed with his attorney‘s decision not to put on any evidence in the case. Furthermore, counsel advised the court that for ethical reasons he could not examine Peterson if Peterson were allowed to testify. The district court refused to reopen the evidence in order to allow Peterson to testify. Peterson claims that the district court‘s refusal to do so violated his constitutional right to testify in his own defense.
It is true that a criminal defendant has a constitutional right to testify in
Thus, in reviewing whether the district court properly exercised its discretion not to reopen the evidence, we look to whether the court properly weighed the defendant‘s right to testify against the need for order and fairness in the proceedings. See Rock, 483 U.S. at 56 (“In applying its evidentiary rules a [court] must evaluate whether the interests served by a rule justify the limitation imposed on the defendant‘s constitutional right to testify.“). In conducting this inquiry, we find helpful the Fifth Circuit‘s decision in United States v. Walker, 772 F.2d 1172 (5th Cir.1985), where the court enumerated the factors a district court must consider in deciding whether to reopen the evidence to allow a defendant to testify:
In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion.
The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party‘s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.
Walker, 772 F.2d at 1177 (citations and quotation marks omitted).3 In short, the court must consider whether the likely value of the defendant‘s testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief.
Peterson argues that, given the timeliness of his motion to reopen, it posed no threat of disrupting or prejudicing the proceedings. We agree that the small delay posed a relatively small threat. Peterson moved to reopen approximately a half-hour after the defense rested. During that time, counsel for both sides prepared their closing arguments during recess, and the court then conducted a very simple charging conference lasting no more than a few minutes; other than that, nothing of substance took place. Thus, while reopening the evidence always can be expected to disrupt trial proceedings to some extent, here the disruption would have been comparatively minor. Compare United States v. Parker, 73 F.3d 48, 54 (5th Cir.), opinion vacated upon reh‘g en banc, 80 F.3d 1042 (5th Cir.1996), and reinstated in relevant part, 104 F.3d 72 (5th Cir.1997) (finding timeliness of motion to reopen to weigh
Nonetheless, while small, the potential for disruption upon reopening the evidence was not insignificant. For example, reopening the evidence may have confused the jurors after they had been told to expect closing arguments when they returned from recess. Moreover, Peterson‘s attorney had indicated he would not be able to participate in any examination of Peterson, posing procedural problems for the judge if Peterson were permitted to testify. Given the potential for disruption in this sense, the district court was at liberty to deny the motion to reopen if Peterson‘s testimony was likely to be of little value. And the record sufficiently supports that conclusion. Peterson gave the court hardly any indication as to what he wished to testify about, stating only he “just want[ed] to bring out certain facts about certain issues” that his counsel allegedly failed to develop during cross-examination of the government‘s witnesses. In the court‘s opinion, Peterson was “playing games,” possibly maneuvering to lay the grounds for a future
Finally, as to the reasonableness of Peterson‘s excuse for not testifying during his case-in-chief, Peterson offered no excuse, let alone a reasonable one. Peterson had ample time during his case-in-chief to offer testimony; he admitted that he and counsel had agreed that he would not exercise this option. Even assuming Peterson‘s testimony would have been valuable, Peterson still owed the court some sort of reasonable explanation for his sudden change in tack. Cf., e.g., Parker, 73 F.3d at 54 (finding defense counsel‘s mistake reasonable excuse); Walker, 772 F.2d at 1183-84 (finding “not significantly unreasonable” defendant‘s excuse that during case-in-chief he was too emotionally distraught to testify). Without such a requirement of excuse, the rule generally limiting testimony to the evidence-taking stage of a trial would hardly be a rule at all, and it would be too easy for a defendant to postpone testifying for strategic reasons until after the close of evidence.
In these circumstances, we find no abuse of discretion and no infringement of Peterson‘s constitutional right to testify.
III. Armed Career Criminal Status
The Armed Career Criminal Act,
any crime punishable by imprisonment for a term exceeding one year that—
...
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Peterson admits that this language covers two of his prior state convictions, but challenges the inclusion of a third conviction for breaking and entering under
In determining whether Peterson‘s conviction under
Unlawful breaking and entering of dwelling house. Every person who shall break and enter at any time of the day or night any dwelling house or apartment, whether the same is occupied or not, or any outbuilding or garage attached to or adjoining any dwelling house, without the consent of the owner or tenant of such dwelling house, apartment, building, or garage, shall be imprisoned for not less than one (1) year and not more than five (5) years or fined not more than two thousand dollars ($2,000) or shall suffer both such fine and imprisonment.
Peterson argues that
As a matter of statutory construction, we agree with Peterson that the lack of a criminal intent requirement places
We do not think that
Our reading of
What the legislative history instead suggests is that, in expanding
Our prior cases do not argue for a different conclusion. It is true that this court has twice before found statutory breaking and entering crimes to fall under
We do not suggest that no breaking and entering offense except one precisely meeting the Taylor definition of burglary could ever fall under
For the foregoing reasons, we remand for resentencing.
IV. Weapons Enhancement
The district court enhanced Peterson‘s sentence for the use of a firearm “in connection with” his narcotics offenses pursuant to
Because we have found that Peterson‘s conviction for breaking and entering is not a predicate violent felony, see supra, we do not apply the Sentencing Guideline relevant to armed career criminals,
We construe the phrase “in connection with” broadly. See United States v. Thompson, 32 F.3d 1, 7 (1st Cir.1994); see also United States v. Ellis, 168 F.3d 558, 563 (1st Cir.1999) (reading same phrase broadly in
In this case, the government established at trial that Peterson kept two guns in the same apartment where he stored marijuana. It was also established that a third gun was stored near additional marijuana at Peterson‘s girlfriend‘s house. All of the guns were readily accessible. The district court concluded that it was Peterson‘s “modus operandi to have guns near his stash of marijuana.” Given that Peterson had firearms in close proximity to his drugs in two different locations, this factual finding was not clear error. And the finding sufficiently supports the legal conclusion that the firearm possession was “in connection with” the underlying narcotics offense. In Thompson, we noted that “the usual case” in which the Guideline applies is one in which the defendant “had the firearm available to protect his supply of drugs.” 32 F.3d at 8. Peterson‘s “modus operandi” is well within the ambit of the Guideline. See United States v. McFadden, 13 F.3d 463, 465-66 (1st Cir.1994) (the presence of a readily available weapon in a location containing drugs is enough to meet the “in connection with” standard of
CONCLUSION
We find none of Peterson‘s trial-related claims persuasive. We are also unconvinced by his attempt to avoid a weapons-related sentencing enhancement. We do conclude, however, that his conviction under
TORRUELLA, Chief Judge, dissenting in part.
Although I agree with the majority on the bulk of this opinion, I would find that the breaking and entering statute here,
The majority focuses on the fact that the Supreme Court‘s definition of “burglary” in Taylor required that a criminal statute include two elements to qualify: that the defendant break and enter into a “building or structure” and that the defendant break and enter “with intent to commit a crime.” Id. at 599. From this definition of burglary in
However, I can not conclude that the Taylor decision, which only interpreted
This Court‘s prior decisions have realized that the motivation for including a breaking and entering felony as “violent” under the “otherwise” clause rests primarily on the negative effects of the intrusion and minimally on the reason why the criminal enters the structure. In United States v. Payne, 966 F.2d 4 (1st Cir.1992), we found that attempted breaking and entering was a violent felony. We held that the risk of injury stemmed not from the completion of the break-in, “but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring.” Id. at 8. Notably, we did not premise this serious risk on the fact that the perpetrator was entering the building to commit a felony, or indeed any crime, inside. See also United States v. Sawyer, 144 F.3d 191, 195-96 (1st Cir. 1998) (distinction between crime and one of four serious felonies irrelevant to violent felony determination); United States v. Patterson, 882 F.2d 595, 603 (1st Cir.1989) (“[W]hile a burglary might start out as a non-violent crime, the burglar may resort to violence if someone is on the premises or appears there while the burglary is in process.... Congress could quite reasonably conclude that no matter what the felon‘s intent upon breaking in, the property owner may return, a neighbor may in-
Although the majority does not need to reach the issue, Peterson also argues that the “unoccupied” status of the building should pull it out of the ambit of the “otherwise” clause. Again, neither the Supreme Court nor this Court has premised the risk of harm on the occupied or unoccupied status of the dwelling. See Taylor, 495 U.S. at 597 (The definition of a violent felony includes any “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.“); United States v. Schofield, 114 F.3d 350, 352 (1st Cir. 1997) (“Under Taylor, it is irrelevant whether the school was occupied.“); Payne, 966 F.2d at 8 (Although “any confrontation is more likely to result in violence if it occurs while the perpetrator is in the building, as he is then likely to have no easy way out and to cause greater alarm to whomever he confronts,” there remains “a serious risk of confrontation while a perpetrator is attempting to enter the building.“). This risk of serious injury stemming from the arrival of a passerby, or even more seriously, from the discovery of a trespasser inside a building with limited exit possibilities, is enough to meet the threshold of violence under the ACCA.
Our analysis requires us to examine whether “the probability of physical harm presented by the mine-run of conduct that falls within the heartland of the statute” is sufficient to meet the “violent felony” standard of