Copeland v. Massachusetts Department of Correction et al
Filing
20
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered directing the clerk to dismiss this petition. (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMALL COPELAND,
Petitioner,
v.
MASSACHUSETTS DEPARTMENT OF
CORRECTIONS and DUANE
MacEACHERN, Superintendent,
Respondents.
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CIVIL ACTION NO.
10-11215-DPW
MEMORANDUM AND ORDER
March 11, 2014
After unsuccessfully appealing his convictions on firearms
charges in Massachusetts state court, petitioner Jamall Copeland
now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254.
As grounds for federal relief, Copeland advances the three
grounds that formed the basis of his state court appeal: (1) that
the prosecutor misstated the evidence in his closing argument;
(2) that there was insufficient evidence of Copeland’s
constructive possession of a firearm; and (3) that Copeland’s
jury waiver as to the portion of the firearms indictment alleging
third offense and armed career criminal enhancements was
ineffective because the trial judge may not have been aware that
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she could empanel a new jury to hear those charges.
Finding no
unreasonable application of relevant Federal law or unreasonable
determination of the facts in the governing state court judgment,
I will deny habeas corpus relief.
I.
A.
BACKGROUND
Facts
On habeas review, factual determinations made by state
courts are presumed correct absent clear and convincing evidence
to the contrary.
28 U.S.C. § 2254(e)(1); Miller–El v. Cockrell,
537 U.S. 322, 340 (2003).
The following facts are drawn from the
summary of the relevant evidence recounted by the Massachusetts
Appeals Court, supplemented where necessary by the state record
viewed in the light most favorable to the conviction under
challenge here.
On the morning of October 13, 2004 two men, one of whom was
displaying a weapon, took Daryl Powell to a car after asking him
where his money was.
Powell’s companion Kyesha Elliot, who was
not taken to the car, called the police to report a kidnapping.
Shortly thereafter, police located the car and observed Powell
exiting it.
The car, with two men in it, sped away and was later
located empty.
During the search for the men who had fled the car, Copeland
- the petitioner before me - was found in a small, enclosed space
-2-
in the basement of a home in the Dorchester neighborhood of
Boston.
Shining his flashlight through a hole in the sheetrock
enclosing the space, an officer discovered Copeland kneeling on a
wooden pallet with his hands near his waist, out of the officer’s
sight.
Copeland ignored numerous commands to show his hands.
Another officer arrived on scene and observed Copeland kneeling
on the pallet with his hands between his legs; he too ordered
Copeland to show his hands at least eight times.
Eventually,
Copeland lowered his head toward the floor with his backside in
the air and slowly put his hands out in front of him.
Once Copeland finally showed his hands, one of the officers
stuck his head through the hole in the sheetrock and shined his
flashlight around the room.
Behind a pillar, he spotted a
shoulder belonging to Copeland’s co-defendant, Dennis Winborn.
Winborn fired three shots in the direction of the officer.
officer returned fire, striking Winborn in the knee.
The
Winborn
fell to the floor and dropped his gun.
A police canine responding to the scene tracked a scent from
the car from which Powell had been released to the basement where
Copeland and Winston were found.
After Copeland and Winston were
arrested, the police searched the basement for evidence.
In
addition to the gun Winborn had dropped, police recovered a
second gun from between the slats of the pallet on which Copeland
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had been kneeling.
The gun found in the pallet had one bullet in
the chamber and a magazine containing twelve rounds of
ammunition.
At trial, Elliot testified that the gun looked like
the one that the lighter-skinned of the two kidnappers — who was
wearing a dark blue hooded sweatshirt and had braided hair — had
drawn on her.1
Copeland is lighter-skinned than Winston.
He was
wearing a dark blue hooded sweatshirt with his hair braided in
cornrows when he was arrested.
B.
Procedural History
On November 30, 2004, a Suffolk County grand jury returned
five indicments against Copeland: (1) armed assault with intent
to murder; (2) unlawful possession of a firearm as a third
offense and as an armed career criminal; (3) unlawful possession
of a large capacity feeding device for a large capacity weapon;
(4) kidnapping; and (5) armed assault with intent to rob.
Indictments 2 and 3, which are the subject of this petition,
arose from Copeland’s alleged constructive possession of the
firearm recovered from the pallet following his standoff with
police.2
1
Powell also testified during the trial and said that Copeland
and Winborn did not look like his kidnappers. He conceded,
however, that he had been called to testify against his will and
was “not the type of person that testif[ies] on people.”
2
Count 1 alleged Copeland was liable as a joint venturer in
Winston’s attempt to shoot the police officer. Counts 4 and 5
-4-
1.
Trial
In May 2006, Copeland’s case was tried to a jury in Suffolk
Superior Court.
Pursuant to Mass. Gen. Laws ch. 278, § 11A, the
trial was bifurcated so that the jury would not learn of the
“third offense” and armed career criminal portion of the firearms
indictment until after it had returned a guilty verdict on the
underlying possession charge.
Following the close of the
Commonwealth’s evidence, and again at the close of all evidence,
Copeland filed motions for required findings of not guilty, which
were denied.
On May 19, 2006 the jury found Copeland guilty of
unlawful possession of a firearm and unlawful possession of a
large capacity feeding device, and acquitted him of the other
charges.
After the jury had been dismissed, the trial judge proceeded
to address the third offense and armed career criminal portions
of the firearm possession indictment.
She informed Mr. Copeland
that “you are entitled to try to a jury, the same jury, [on]
those two separate counts . . .”
She then asked Mr. Copeland if
it was his intention, as his counsel had indicated, to waive his
right to a jury trial on those two counts, to which he replied:
“Yes.”
She further stated: “But you understand that you have
arose from Copeland’s alleged role in the abduction of Daryl
Powell.
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every right to have this jury consider the evidence and the
Commonwealth would have to prove beyond a reasonable doubt that
indeed you were the Jamall Copeland who was convicted in January
of 1991 and also in December of 1991 of two separate firearm
charges,” to which Mr. Copeland replied that he understood.
Copeland opted to waive his right to a jury and proceed with
a jury-waived trial on the remaining charges.
Following that
trial, which was held immediately prior to his sentencing several
weeks later, the judge found Copeland guilty of the third offense
and armed career criminal portions of the firearms indictment.
She then sentenced Copeland a to a term of fifteen years on the
charge of unlawful possession of a firearm, and a term of three
to five years from and after the firearm sentence for unlawful
possession of a large-capacity feeding device.
Copeland is
currently serving his sentence at MCI Cedar Junction.
2.
Post-trial Proceedings
Copeland timely appealed, and the Massachusetts Appeals
Court affirmed his convictions on December 17, 2009 in an
unpublished opinion issued pursuant to that Court’s Rule 1:28.
Commonwealth v. Copeland, 918 N.E.2d 480 (table), 2009 WL 4842239
(Mass. App. Dec. 17, 2009).
The Massachusetts Supreme Judicial
Court denied further appellate review on February 24, 2010.
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Having exhausted his state direct appeal remedies, Copeland
timely filed this petition on July 15, 2010.3
II.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., a federal court may
grant a state prisoner habeas relief if the state court’s
decision on the merits “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States,” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C. §
2254(d).
The Supreme Court has narrowly interpreted “clearly
established federal law” to refer “to the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time of
3
Mr. Copeland, who is pro se, filed a motion on October 20, 2011
seeking a stay of this habeas proceeding on the grounds that he
“still ha[d] motions to file in the Suffolk Superior Court.” By
order dated April 7, 2012, I reserved ruling on the motion
pending receipt, on or before May 2012, of a status report from
Mr. Copeland regarding any pending motions for new trial in the
Superior Court. Mr. Copeland having failed to provide
justification for his request for a stay despite being afforded a
substantial additional amount of time within which to do so, I
gave notice I was lifting the stay (which I previously had
observed informally) and took the matter under advisement on the
merits.
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the relevant state-court decision.”
362, 412 (2000).
Williams v. Taylor, 529 U.S.
A state court’s decision is “contrary to” such
law if its conclusion is “opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.”
Id. at 413.
A state
court’s decision “involve[s] an unreasonable application” of such
law if the court “identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.”
Id.
Moreover, “a federal habeas court may not issue the writ
simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”
Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at
411).
Instead, “that application must be objectively
unreasonable.
This distinction creates a substantially higher
threshold for obtaining relief than de novo review.”
(internal citations omitted).
Id.
The First Circuit has interpreted
the “unreasonable application” standard to mean that “if it is a
close question whether the state decision is in error, then the
state decision cannot be an unreasonable application.”
-8-
L’Abbe v.
DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002) (citation and quotation
marks omitted).
Courts look to the last reasoned state court decision in
determining a petitioner’s eligibility for federal habeas relief.
Malone v. Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (citation
omitted).
In this case, the last reasoned decision is the
opinion of the Massachusetts Appeals Court.
Copeland, 918 N.E.2d
480 (table), 2009 WL 4842239.
III.
A.
DISCUSSION
Prosecutorial Misconduct
During his closing argument, the trial prosecutor made the
following argument:
How long does it take before [Copeland] finally shows
his hands? And you know what, ladies and gentlemen?
The defense wants to focus on the minutia. Is it
between the legs? Is it in the budge?4 You heard the
testimony. It speaks for itself. There’s no question
that Jamall Copeland refused to show his hands.
Because he had a .9mm fully loaded Glock semiautomatic
handgun in his possession and he was putting it right
between his legs, right on that pallet where he was
sitting on top of.
Later in the closing, the prosecutor argued that Copeland was
found “with a [] gun between his legs.”
Trial counsel for Copeland objected, and following closing
arguments, the judge reminded the jury that closing arguments are
4
The Commonwealth contends that “budge” refers to Copeland’s
waist area.
-9-
not evidence, and specifically instructed them that she did not
“believe [that there was] any direct evidence of anyone observing
Mr. Copeland with a gun physically — being held physically
between his legs,” but also that “it is your memory that controls
and not mine.”
On appeal, Copeland argued that the prosecutor made two
misstatements during his closing argument:
First, that the
prosecutor misstated the evidence when he said the defendant
refused to show his hands because he had a gun in his possession
and was hiding it in the pallet; and second, that the evidence
did not support the prosecutor’s statement that the defendant was
found by police with a gun between his legs.
As to the first alleged misstatement, the Appeals Court
disagreed.
The Appeals Court found that the evidence at trial
showed that:
The defendant was found kneeling on a pallet in a
cellar after having been chased by police who responded
to a call reporting an armed kidnapping. The defendant
kept his hands between his legs despite repeated
demands by police to display them. He then made
movements consistent with placing the gun beneath the
pallet before displaying his hands to police.
Copeland, 918 N.E.2d 480 (table), 2009 WL 4842239.
In light of
that evidence, the Appeals Court found that “[i]t certainly did
not stray beyond the permissible bounds of argument for the
prosecutor to argue that the reason for the defendant’s delay in
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showing his hands to police was that he wanted first to dispose
of the gun he was holding.”
Id.
As to the second alleged misstatement, the Appeals Court
agreed that the evidence did not support the prosecutor’s
statement that the defendant was found by police with a gun
between his legs.
However, the Appeals Court found that “any
prejudicial effect from the statement was cured when, at the
defendant’s request, the judge instructed the jury that no
witness had testified to seeing the defendant with a gun
physically between his legs,” and reminded the jury that “closing
arguments are not evidence and that the jurors should rely solely
on their own recollections of the evidence.”
Id.
In his petition,5 Mr. Copeland argues that the Appeals Court
erred by finding that the trial prosecutor’s misstatement of the
evidence during closing argument was not prejudicial.
Because he
has not submitted a memorandum of law drafted specifically for
use in this habeas proceeding, but instead relies on the
substance of his petition for Further Appellate Review that he
submitted to the SJC, he does not explicitly argue that the state
court’s decision “resulted in a decision that was contrary to, or
5
In lieu of submitting a memorandum of law in support of his
habeas petition, Mr. Copeland has asked me to accept his
Application for Leave to Obtain Further Appellate Review that he
previously submitted to the Supreme Judicial Court.
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involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.”
28 U.S.C. § 2254(d).
Nevertheless, I have examined the
substance of Mr. Copeland’s petition to the extent it would
support such an argument.
See Dutil v. Murphy, 550 F.3d 154, 158
(1st Cir. 2008) (recognizing that pro se litigants are held to
less demanding standards in order “to guard against the loss of
pro se claims due to technical defects.”).
In order to prevail on claim of prosecutorial misconduct
during closing argument, a habeas petitioner must demonstrate
that improper statements in closing argument “so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.”
643 (1974).
Donnelly v. DeChristoforo, 416 U.S. 637,
The First Circuit has observed that “[t]here is no
precise federal standard governing due process claims based on a
prosecutor’s remarks,” Dagley v. Russo, 540 F.3d 8, 15 n.3 (1st
Cir. 2008), and because the Donnelly “fundamental unfairness
standard” is “general in nature . . . state courts have ‘more
leeway in . . . reaching outcomes in [their] case-by-case
determinations.’”
Id. at 18 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)) (alterations in original).
In analyzing a claim like Mr. Copeland’s, the First Circuit has
considered “the severity of the misconduct, whether it was
-12-
deliberate or accidental, the context in which it occurred, the
likely curative effect of the judge’s admonitions and the
strength of the evidence against the defendant.”
United States
v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (internal
quotation marks and citation omitted).
Mr. Copeland’s claim of prosecutorial misconduct fails even
to approach the demanding standard applicable to petitions for
habeas relief.
First, Mr. Copeland fails to articulate how the
Appeals Court erred – much less committed an error of the degree
required for habeas relief — in concluding that the prosecutor’s
first alleged misstatement was not a mischaracterization of facts
in evidence but rather a proper argument based on those facts.
Based on the testimony at trial, it was proper for the prosecutor
to argue that Copeland’s actions when ordered by police to show
his hands were consistent with an attempt to hide the gun that
was ultimately recovered from inside the pallet.
Second, Mr. Copeland fails to demonstrate how the Appeals
Court erred by concluding that trial judge’s curative instruction
to the jury — which included the judge’s recollection that “no
witness had testified to seeing the defendant with a gun
physically between his legs,” Copeland, 918 N.E.2d 480 (table),
2009 WL 4842239 — was effective to cure whatever prejudice might
have resulted from the prosecutor’s statement.
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Copeland argued
in his Application for Further Appellate Review that “[g]iven the
acquittal on all other charges, there is no fair assurance that
the guilty verdict on the firearm charges was not adversely
impacted by the improper argument by the prosecutor.”
But that
argument ignores the strength of the other evidence supporting
his conviction on the firearms possession charges, as well as the
fact that the “harmless error” standard of review that applied to
this issue before the Appeals Court has risen to a much more
demanding standard in this habeas proceeding.
The habeas
standard requires Copeland to demonstrate that the single
improper statement made by the prosecutor “so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.”
Donnelly, 416 U.S. at 643.
He has failed to do
so.
B.
Sufficiency of the Evidence
Copeland next argues that the evidence at trial was
insufficient to support his conviction for possession of a
firearm on a theory of constructive possession, and that the
Appeals Court erred in finding otherwise.
The standard under the Due Process Clause of the Fourteenth
Amendment for whether a conviction is based on sufficient
evidence is set out in Jackson v. Virginia, 443 U.S. 307 (1979).
That standard requires a federal court to evaluate “whether,
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after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
at 319 (emphasis in original).
Id.
As previously noted, on habeas
review, factual determinations made by state courts are presumed
correct absent clear and convincing evidence to the contrary.
U.S.C. § 2254(e)(1).
28
“In practice, habeas review under Jackson .
. . is reserved for unusual cases and its standard ‘is rarely met
where there is plausible evidence to support a verdict.’”
Sivo
v. Wall, 644 F.3d 46, 50 (1st Cir. 2011) (quoting Tash v. Roden,
626 F.3d 15, 20 (1st Cir. 2010)).
Thus, “Jackson applies where
there is no substantial evidence of guilt or where the evidence
amounts to little more than colorable speculation.”
Id.
Here, the Appeals Court evaluated Copeland’s argument under
a standard equivalent to Jackson as set forth in Commonwealth v.
Latimore, 393 N.E.2d 370, 374 (Mass. 1979) (citing Jackson, 443
U.S. at 318–19); see also Leftwich v. Maloney, 532 F.3d 20, 24
(1st Cir. 2008) (“[T]he Latimore court adopted the governing
federal constitutional standard as the Massachusetts standard for
sufficiency of the evidence challenges . . . .”).
As a result,
Copeland can prevail only if he is able to demonstrate that the
Appeals Court’s effective application of the Jackson standard was
an unreasonable application of Supreme Court precedent.
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Proof of constructive possession requires the Commonwealth
to show “knowledge coupled with the ability and intention to
exercise dominion and control.”
Commonwealth v. Brzezinski, 540
N.E.2d 1325, 1331 (Mass. 1989) (quoting Commonwealth v. Rosa, 459
N.E.2d 1236, 1238 (Mass. App. 1984)).
“Proof of possession of
[contraband] may be established by circumstantial evidence, and
the inferences that can be drawn therefrom.”
Id. (quoting
Commonwealth v. LaPerle, 475 N.E.2d 81, 83 (Mass. App. 1985)).
“Presence alone cannot show the requisite knowledge, power, or
intention to exercise control over [contraband], but presence,
supplemented by other incriminating evidence, ‘will serve to tip
the scale in favor of sufficiency.’”
Commonwealth v. Albano, 365
N.E.2d 808, 810 (Mass. 1977) (quoting United States v. Birmley,
529 F.2d 103, 108 (6th Cir. 1976)).
The Appeals Court observed that while proximity to, and
awareness of, an illegal item are not sufficient to prove
constructive possession, there were abundant ‘plus’ factors
indicating Copeland’s ability and intention to exercise control
over the gun in question.
Copeland, 918 N.E.2d 480 (table), 2009
WL 4842239 (citing Commonwealth v. Brown, 609 N.E.2d 100, 102-03
(Mass. App. 1993)).
As found by the Appeals Court, these plus
factors included that:
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the defendant was found kneeling on the wooden pallet
under which the gun was found; the defendant refused to
remove his hands from between his legs despite several
orders from armed police to that effect; when the
defendant finally complied with police orders, he made
motions consistent with hiding the gun in the pallet;
the gun was clean despite being found in a dusty,
unused part of a basement; and finally, the defendant
was identified by an eyewitness as the man who
participated in an armed kidnapping using a similarlooking gun earlier in the day, and there was
additional evidence corroborating that identification.
Id.
Taking these facts together, it was reasonable for the
Appeals Court to hold that a rational trier of fact could
conclude beyond a reasonable doubt that Copeland constructively
possessed (and in fact had previously actually possessed) the gun
found in the pallet.
In his petition, Copeland objects to the final ‘plus’ factor
cited by the Appeals Court — that “the defendant was identified
by an eyewitness as the man who participated in an armed
kidnapping using a similar-looking gun earlier in the day,” id. —
as a mischaracterization of the evidence.
Copeland’s contention appears technically correct in the
sense that neither Elliot nor Powell directly identified Copeland
as one of the kidnappers at trial.
This is not surprising given
their testimony that the kidnappers were wearing ski masks
covering their faces.
However, the thrust of the Appeal Court’s
assertion is, in substance, also correct since such an
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identification could be said to have been made obliquely through
the testimony of Elliot.
Elliot testified that the gun recovered
from under the pallet looked like the gun held by one of the two
kidnappers, who was a lighter-skinned black man with braided hair
wearing a blue hooded sweatshirt and a ski mask.
When Copeland
was arrested, he was wearing a dark blue hooded sweatshirt and
his hair was braided in cornrows.
I recognize that for his part,
Powell testified that Copeland and Winston did not look like the
kidnappers, but he also made clear that he had been called to
testify against his will and that he was “not the type of person
that testif[ies] on people.”
In this circumstance, the Appeals
Court thus reasonably could have concluded that the jury had
credited the testimony of Elliot, and disregarded the testimony
of Powell as not credible.
In sum, Copeland has not met his burden of demonstrating
by clear and convincing evidence that the Appeals Court’s
determination of the facts was unreasonable.
Nor has he
demonstrated that based on its determination of the facts, the
Appeals Court unreasonably applied the law of constructive
possession in determining the sufficiency of the evidence.
C.
Effectiveness of Jury Waiver
Finally, Copeland challenges the Appeals Court’s
determination that his jury waiver as to the third offense and
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armed career criminal portions of the firearm possession
indictment was effective.
On appeal, Copeland argued that the
trial judge’s remarks informing him of his right to have those
portions of the indictment tried before “the same jury” and “this
jury” suggest that she was not aware of her discretion to empanel
a new jury to decide those remaining charges.
Because Copeland
allegedly relied on the trial judge’s allegedly mistaken
impression that she could not empanel a new jury for those
charges, he argues that his jury waiver was not made knowingly
and voluntarily.
Copeland’s argument is based on Mass. Gen. Laws ch. 278, §
11A, which provides for a bifurcated trial where the offense
charged is a second or subsequent offense.
In such
circumstances, subject to certain exceptions, “no part of the
complaint or indictment which alleges that the crime charged is a
second or subsequent offense shall be read or shown to the jury
or referred to in any manner during trial . . . .”
Id.
The
statute further provides that if the defendant is convicted of
the underlying offense, pleads not guilty to the second or
subsequent offender portion of the indictment, and opts for a
jury trial on the remaining charges, “[t]he court may, in its
discretion, either hold the jury which returned the verdict of
guilty of the crime, the trial of which was just completed, or it
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may order the impaneling of a new jury to try the issue of
conviction of one or more prior offenses.”
Id.
In rejecting Copeland’s argument on appeal, the Appeals
Court stated as follows:
Contrary to the defendant’s argument, these comments
[by the trial judge] do not reasonably give rise to the
inference that the judge was unaware of her discretion
to empanel a new jury. See Fuentes v. Commonwealth,
448 Mass. 1017, 1018 n. 1, 863 N.E.2d 43 (2007) (where
trial judge stated that she had “no choice . . . but to
declare a hung jury,” the court refused to conclude
that the judge was unaware of her discretion on the
matter). Regardless, the defendant had no right to be
informed of the judge’s discretion in any event.
General Laws c. 278, § 11A, does not grant defendants a
right to a new jury, and a judge may decline to empanel
a new jury even where a defendant requests it. See,
e.g., Commonwealth v. Thompson, 427 Mass. 729, 736–737,
696 N.E.2d 105 (1998). A judge is under no compulsion
to explain this discretionary authority to a defendant
during the colloquy.
Copeland, 918 N.E.2d 480 (table), 2009 WL 4842239.
Copeland cites to no Supreme Court authority to support his
claim that the trial judge should have informed him of her
discretion to empanel a new jury for trial on subsequent offense
or equivalent charges, nor could I find any.
This fact alone is
fatal to Copeland’s jury waiver claim in the context of this
habeas proceeding.
See Brown v. Ruane, 630 F.3d 62, 68 (1st Cir.
2011) (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)) (“A
threshold determination that no holding of the Supreme Court
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required application to the factual context presented by the
petitioner’s claim is dispositive in the habeas analysis.”).
Nor, even if I were to apply general pronouncements by the
Supreme Court regarding what constitutes an effective waiver of
the Sixth Amendment right to trial by jury, see, e.g., Brady v.
United States, 397 U.S. 742 (1970), has Copeland persuaded me
that any constitutional infirmity resulted from the fact the
judge may not have understood that she had the discretion to
empanel a new jury.
This is not a case where a judge committed
an error of law by affirmatively indicating that she lacked the
authority to take a certain action that the law in fact conferred
to her discretion.
See, e.g., United States v. Lombard, 72 F.3d
170, 184-187 (1st Cir. 1995) (vacating sentence where trial court
believed it lacked discretion to depart from guidelines
sentencing range); United States v. Rivera, 994 F.2d 942, 953
(1st Cir. 1993) (same).
Here, Copeland did not ask that a new
jury be empaneled prior to deciding to waive his right to a jury
trial on the subsequent offense charges, nor did the trial judge
clearly indicate that she believed she lacked the authority to do
so.6
Under those circumstances, where Copeland clearly had no
6
That the trial judge had already dismissed the jury before
inquiring as to whether or not Copeland wanted to try the
remaining charges to a jury suggests that the judge was indeed
aware of her discretion, because if Copeland had, in fact,
elected to try those charges to a jury, a new jury necessarily
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right to a new jury, nothing about the Appeals Court’s
determination of this issue warrants the kind of extraordinary
relief that a habeas petition entails.
IV.
CONCLUSION
For the reasons set forth above, I DENY Copeland’s petition
for a writ of habeas corpus and direct the Clerk to dismiss the
petition.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT
would had to have been reconstituted and empaneled.
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