Brown v. Lucey
Judge Indira Talwani: ORDER entered ACCEPTING and ADOPTING re: 31 Report and Recommendation. The 1 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED . (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL RONALD BROWN,
BRENDAN M. LUCEY,
Civil Action No. 14-cv-13683-IT
September 14, 2017
After considering the Magistrate Judge’s August 28, 2017 Report and Recommendation
[#31], and noting that there has been no objection, the court hereby ACCEPTS and ADOPTS the
Report and Recommendation [#31] for the reasons set forth therein. Petitioner Michael Ronald
Brown’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus [#1] is DENIED.
IT IS SO ORDERED.
/s/ Indira Talwani
United States District Judge
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL RONALD BROWN,
BRENDAN M. LUCEY,
REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No. 1)
Michael Ronald Brown (Brown or “the petitioner”), proceeding
pro se, has filed a Petition for Writ of Habeas Corpus pursuant to
distributing controlled substances.
He advances several arguments
in support of his petition but his principal claim is that the
Massachusetts Supreme Judicial Court (SJC) violated the double
jeopardy clause when it affirmed his conviction for a charge Brown
contends he was acquitted of by the trial judge.
consideration of the record in this case, and for the reasons set
forth below, the court finds that the petitioner is not entitled
to the relief requested and recommends that the petition be DENIED.
Brown, a physician, was indicted in Massachusetts Superior
32A(a) and 32B(a), for
Class B and Class C controlled substances.1
In particular, Brown
allegedly prescribed pain-relieving opiates to seven patients for
He was tried before a jury on all but two
indictments, which were tried subsequently at a jury-waived trial.
Both trials involved charges that Brown violated M.G.L. c. 94C, §§
32A(a) and 32B(a) by
substances, and Brown was convicted after each trial.
Brown’s jury trial revolved around the instructions to the jury on
the “distributing or dispensing” charges.
The material facts
regarding both trials, summarized by the SJC, are as follows:2
a. Jury trial.
The jury trial centered on
prescriptions for pain-relieving opiates, all class B
controlled substances, G.L. c. 94C, § 31, written by the
defendant for seven patients. Admitted in evidence at
the trial was a statement the defendant had made to
members of the Attorney General's Medicaid fraud control
unit during the investigation, to the effect that he
followed a responsible standard of care with regard to
patients receiving such prescriptions.
Brown was also charged with submitting false medical claims in violation
of M.G.L. c. 118E, § 40(2), committing larceny in excess of $250 in violation
of M.G.L. c. 266, § 30(1) and possession of a controlled substance in violation
of M.G.L. c. 94C, § 34.
2 In habeas proceedings, “a determination of factual issues by the State court
should be presumed to be correct.” 28 U.S.C. § 2254(e)(1). This presumption
of correctness extends to factual findings by state appellate courts. Rashad
v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002).
that his practice was to test his patients for
indications of illegal substance abuse, and that he
would intervene or cease prescribing pain-relieving
opiates when those tests returned positive for illegal
drugs. However, in the cases of the seven patients at
issue, the evidence was that the defendant did not heed
his own standards and continued to prescribe opiates to
the patients —sometimes in increasing dosages— despite
laboratory results revealing them to be illegal drug
users. Those same laboratory results also revealed that
the patients were not taking the opiates prescribed to
them by the defendant. Yet, the defendant continued to
issue new prescriptions to them. Based on this evidence,
the Commonwealth produced an expert who testified that
the prescriptions written by the defendant for these
patients were not issued in good faith and served no
legitimate medical purpose.
As noted, the indictments against the defendant
that were at issue in the jury trial charged him with
“distribut[ing] or dispens[ing]” controlled substances
in violation of the drug statutes.
“[d]istribute” and “[d]ispense” have distinct meanings
defined in G.L. c. 94C, § 1, and the defendant argued at
trial that his conduct could only qualify, if at all, as
one or the other, but not both. The Commonwealth agreed
and proceeded on the theory that the defendant had
“dispensed” controlled substances within the meaning of
the drug statutes... As a result, the judge instructed
the jury that they had to find beyond a reasonable doubt
that the defendant “dispensed” each of the controlled
In turn, the defendant contended that he could not
be guilty of dispensing controlled substances unless the
persons to whom they were delivered were lawfully in
possession of them, pointing to the statutory definition
of “dispense” and “ultimate user.” Because the evidence
was notably to the contrary, the defendant made a motion
for directed verdicts, which was denied, and a motion
for a jury instruction to the same effect, which was
b. Jury-waived trial. At the jury-waived trial on
the indictment charging distributing or dispensing a
class C controlled substance in violation of § 32B(a),
the defendant stipulated to evidence sufficient to find
him guilty of the charge, admitting that he prescribed
opiates to a patient pursuant to an agreement under which
the patient would fill the prescription and give some of
the medication back to the defendant, and that the
prescription was not written for a legitimate medical
Neither the parties nor the judge addressed the
fact that the indictment charged the defendant with
“distribut[ing] or dispens[ing].” In finding the
defendant guilty, the judge stated simply that the
defendant had violated G.L. c. 94C, § 32B(a), without
reference to which of the two forms of conduct the
defendant had engaged in, and the defendant made no claim
as to the adequacy of the evidence to support a
conviction under either alternative.
Commonwealth v. Brown, 456 Mass. 708, 710-711 (2010) (internal
footnotes omitted) (Brown I).
III. PRIOR PROCEEDINGS
Brown applied for direct appellate review to the SJC, raising
among other things the issue of whether he could be convicted of
dispensing a controlled substance when the ultimate user of that
Brown then appealed to the Massachusetts Appeals Court.
application on November 29, 2007.
Appeals Court affirmed the trial court's rulings (with one judge
dissenting on the issue), holding that dispensing a controlled
Pursuant to Rule 11, Mass. R. App. P., a party may seek direct SJC review in
possessors of the substances.
Commonwealth v. Brown, 74 Mass.
App. Ct. 75, 83–84 (Mass. App. Ct. 2009).
On July 17, 2009, the SJC granted Brown’s request for further
On May 11, 2010, the SJC affirmed
Brown's convictions after engaging in a detailed analysis of M.G.L.
c. 94C and its various sections.
Commonwealth v. Brown, 456 Mass.
The SJC concluded among other things that a physician
who engages in the conduct Brown engaged in may be prosecuted for
either issuing an invalid prescription, in violation of section
19, or for unlawful distribution, in violation of sections 32-32H.
Brown, 456 Mass. at 724-725.
Here, because the indictment charged
Brown with violating section 32 rather than section 19, the
indictment, properly understood, alleged unlawful distribution.
instruction, although articulated as one for unlawful dispensing,
in reality recited the elements for unlawful distribution.
prejudiced in any way because the jury instruction the court gave
matched the elements of the statute and it therefore made no
attention was drawn.
Considering only the elements necessary for
Id. at 726.
As to the conviction on the indictment
charging “distribute or dispense” rendered in the jury-waived
trial, the SJC found no error and affirmed that conviction.
Brown filed a Petition for Rehearing to the SJC but the SJC denied
it, on June 30, 2010.
On June 29, 2011, Brown filed his first habeas petition in
The petition set forth six separate grounds for
relief, including among them the claims raised in the present
petition, but the court dismissed it for failure to exhaust state
Consequently, on March 19, 2012, Brown moved in the superior
court for release from unlawful restraint pursuant to Mass. R.
Crim. P. 30(a).
On March 21, 2012, the superior court
denied the motion without a hearing.
Brown appealed to
the Appeals Court and the appeal was subsequently transferred from
the Appeals Court to the SJC sua sponte, on April 26, 2012.
On September 25, 2013, the SJC affirmed the order denying
the petitioner’s Rule 30 motion, and found that its prior decision
in Brown I did not violate the petitioner’s constitutional rights.
Commonwealth v. Brown, 466 Mass. 1007, 1010 (2013) (Brown II).
THE PETITIONER’S HABEAS CLAIMS
On September 22, 2014, the petitioner filed the instant
1. When a judge instructs a jury that the charge of
Distribution is surplusage, and is of no concern to
your deliberation, with explicit approval of the
Prosecution, does this amount to an acquittal of the
charge of Distribution, after the jury reaches a
verdict on the alternative charge Dispensing, and is
discharge [sic] from their duty?
Re-paraphrasing, the Court reads this question to contend that the
trial court acquitted the petitioner of the charge of unlawful
distribution, and the SJC therefore violated the Fifth Amendment’s
petitioner’s conviction on that ground.
resurrect a charge that has been removed from an
indictment, with the explicit approval of the
Commonwealth and never contested by the Commonwealth
without violating the defendant’s right to a fair and
The Court interprets this question to allege that, because the
petitioner had no reason at the time of trial to believe that his
conviction was one for unlawful distribution, the SJC’s subsequent
affirmance on that ground was unexpected and effectively deprived
him of the right to appeal the conviction.
3. Does the imposition of the Distribution conviction
along with the conviction of Possession (guilty filed)
amounts [sic] to multiple punishments for the same
crime, in that possession is a lesser included crime
The Court interprets this question to argue that the petitioner
cannot be punished for unlawful drug possession because possession
4. Are ambiguous criminal statutes to be construed in
favor of the defendant?
The Court interprets this question to allege a violation of
the Ex Post Facto Clause of the Constitution.
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of
1996” (“AEDPA”), a federal court may not grant an application for
writ of habeas corpus on behalf of a person in state custody with
respect to any claim that was adjudicated on the merits in state
“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 (2)
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v.
Visciotti, 537 U.S. 19, 24–26 (2002); Early v. Packer, 537 U.S. 3,
8 (2002); Williams v. Taylor, 529 U.S. 362, 405–09 (2000).
“Clearly established Federal law” refers to the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision on the merits.
Greene v. Fisher, 565 U.S. 34, 39 (2011); Lockyer v. Andrade, 538
U.S. 63, 71–72 (2003).
“[C]learly established law signifies the
holdings, as opposed to the dicta, of [the United States Supreme]
Howes v. Fields, 565 U.S. 499, 505 (2012)
(quoting Williams v. Taylor, 529 U.S. at 412; internal quotations
A state court's decision is “contrary to” clearly established
federal law if: (1) it applies a rule that contradicts governing
Supreme Court law; or (2) it “confronts a set of facts ...
materially indistinguishable” from a decision of the Supreme Court
but reaches a different result.
See Early v. Packer, 537 U.S. at
8 (citation omitted); Williams v. Taylor, 529 U.S. at 405–06.
state court's decision “involves an unreasonable application of
[Supreme Court] precedent if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply, or unreasonably refuses to
extend that principle to a new context where it should apply.”
Williams v. Taylor, 529 U.S. at 407 (citation omitted).
application of [Supreme Court] precedent ‘unreasonable,’ the state
court's decision must have been more than incorrect or erroneous.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003).
“The state court's
application must have been ‘objectively unreasonable.’”
520–521; see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009);
Davis v. Woodford, 384 F.3d 628, 637–638 (9th Cir. 2004), cert.
dism'd, 545 U.S. 1165 (2005).
“Under § 2254(d), a habeas court
must determine what arguments or theories supported, ... or could
have supported, the state court's decision; and then it must ask
whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior
decision of this Court.”
Harrington v. Richter, 562 U.S. 86, 102
Habeas relief may not issue unless “there is no
obtaining habeas corpus from a federal court, a state prisoner
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”).
erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.”
Titlow, 134 S.Ct. 10, 16 (2013).
Double Jeopardy Clause Violation
Brown contends that he was acquitted of the charge of unlawful
distribution and consider only dispensing, and the SJC therefore
violated the Fifth Amendment’s double jeopardy clause when it
affirmed his conviction for distribution.
The double jeopardy
clause guarantees that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.”
The clause extends to state prosecutions through the
Benton v. Maryland, 395 U.S. 784, 794
The double jeopardy clause “protects against a second
prosecution for the same offense after acquittal, against a second
prosecution for the same offense after conviction, and against
multiple punishments for the same offense.”
Lydon, 466 U.S. 294, 306-07 (1984).
Justices of BMC v.
Brown invokes the first of
these principles here.
The petitioner is not entitled to habeas relief on this claim
because there is no clearly established Supreme Court precedent
holding that an instruction to a jury to ignore a particular theory
of liability per se amounts to an acquittal of the offense on that
Brown suggests without quite explicitly arguing that the
Supreme Court addressed this issue in Price v. Vincent, 538 U.S.
634 (2003), but he is wrong.
As Brown notes, the Supreme Court in
Price did state that “an instruction to the jury that a charge or
element of the charge has been dismissed by the Judge” might
support a finding of acquittal, but he takes that statement out of
Price v. Vincent, 538 U.S. at 642.
In context, the
Supreme Court was merely recounting statements Michigan’s Supreme
Court had made below when it addressed the issue, but the Supreme
Court itself did not address the issue.
Moreover, Price hardly
advances the petitioner’s cause; the Supreme Court ultimately held
that there was no basis to disturb the state supreme court’s ruling
that the trial judge’s comments that the evidence “at the very
sufficiently final to constitute an acquittal of the first degree
Price, 538 U.S. at 637—643.
No party has offered any other controlling precedent on this
issue, presumably because there is none, and this court also has
not been able to identify any controlling Supreme Court precedent
directly on point.
Accordingly, Brown’s claim fails.
v. Musladin, 549 U.S. 70, 77 (2006) (holding that habeas relief
was not available where there were no Supreme Court holdings to
support petitioner’s claim).
The SJC’s “Resurrection” of Acquitted Conduct
Brown contends that, assuming the trial court acquitted him
of the charge of unlawful distribution by virtue of its jury
instruction, the SJC unlawfully “resurrected” the charge when it
affirmed his conviction, and thus effectively deprived him of the
right to appeal his conviction for unlawful distribution.
To the extent this argument rests on the premise that the
trial court never instructed the jury on a theory of unlawful
distribution, this court agrees with the SJC that the trial court
did in fact so instruct the jury, and the argument therefore fails
for the reasons noted above.
More fundamentally, the claim fails
because Brown has no federal constitutional right to appeal a state
United States v. MacCollum, 426 U.S. 317, 323
(1976) (“The Due Process Clause of the Fifth Amendment does not
establish any right to an appeal”); Griffin v. Illinois, 351 U.S.
12, 18 (1956) (“a State is not required by the Federal Constitution
to provide appellate courts or a right to appellate review at
Rather, Brown’s appellate rights are creations of state
law, and errors of state law do not provide a basis for federal
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it
is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”).
Thus, there is no
basis for habeas relief on this ground.
Brown argues that his convictions for both unlawful drug
distribution and unlawful drug possession “amount to multiple
punishments for the same crime” because unlawful possession is a
lesser crime included within the offense of unlawful distribution.
The SJC summarily dismissed this argument in Brown II.
dealing with other claims the petitioner had raised there, the SJC
noted that Brown's conviction for possession was simply placed “on
file,” and it observed that Brown had never raised any issue
relating to this claim in his direct appeal.
Brown II at 1009
In declining to consider the issue further, it is apparent
The SJC’s treatment of this claim effectively disposes of the
argument on habeas review because this court cannot review state
court decisions that rest on adequate and independent state law
grounds, and a state court conclusion that a claim has been
procedurally defaulted is one such adequate and independent statelaw ground.
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); see
also Lucien v. Spencer, No. 07-11338-MLW, 2015 WL 5824726, at *22
(D. Mass. September 30, 2015) (federal court did not have authority
to review claim where SJC found it had been procedurally defaulted
for failure to have been raised on appeal; SJC's finding was an
independent and adequate state ground); Lykus v. Commonwealth, 432
Mass. 160, 163 (2000) (a defendant who fails to bring his claim to
the attention of the reviewing court at the earliest possible time
waives that claim).
applies, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750.
The petitioner has not explained his failure to raise this claim
on direct appeal and therefore has not established cause and
The petitioner also has not shown that he has suffered
a miscarriage of justice, which “is a narrow exception to the
cause-and-prejudice imperative, seldom to be used, and explicitly
tied to a showing of actual innocence.”
712, 717 (1st Cir. 1995).
Burks v. Dubois, 55 F.3d
The petitioner has not argued that he
is actually innocent and the fact that the evidence against the
petitioner at trial was strong suggests that an actual innocence
claim would be unlikely to succeed.
simply placed “on file” pursuant to Massachusetts state court
practice, no sentence was imposed, and the conviction therefore
did not for habeas purposes become a state law judgment pursuant
to which the petitioner is in custody.
See Seales v. Thompson,
Civil No. 13–11483–LTS, 2015 WL 3795799, at *9 (D. Mass. June 18,
“entertain an application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State court. .
.”) (emphasis added).
Accordingly, the claim fails on that ground
Ex Post Facto Violation
Finally, Brown appears to argue that the statute he was
convicted of violating is ambiguous in terms of what conduct it
criminalizes, and thus violates the Ex Post Facto Clause of the
U.S. Constitution. The Ex Post Facto Clause was designed to ensure
that individuals have fair warning of the applicable laws.
v. U.S., 133 S.Ct. 2072, 2085 (2013).
To violate the Clause, a
law must be retrospective and must “alter the definition of
criminal conduct or increas[e] the punishment for [a] crime” after
it has been committed.
Lynce v. Mathis, 519 U.S. 433, 441 (1997).
A judicial enlargement of a statute, on the other hand, violates
ex post facto principles only if the court's interpretation of the
statute is “unexpected and indefensible.”
Columbia, 378 U.S. 347, 354 (1964).
See Bouie v. City of
Presumably, Brown would
contend that the SJC judicially enlarged the statute when it
affirmed his conviction for unlawful distribution.
Brown is not entitled to relief on this claim because the
SJC’s interpretation of M.G.L. c. 94C was neither unexpected nor
The statute unquestionably covers the conduct Brown
More particularly, the statute makes it a crime for
“[a]ny person [to] knowingly or intentionally . . . distribute.
. . a controlled substance” for an illicit purpose.
32A & 32B.
M.G.L. 94C §§
The facts at trial were sufficient to show that Brown
knowingly and intentionally prescribed opiates to individuals who
either tested positive for illegal drugs or who tested negative
because they were not taking the opiates previously prescribed.
The statute clearly encompasses such conduct.
The SJC did not
reinterpret the statute in a way such that the petitioner did not
have fair warning of the charges against him.
Rather, all the SJC
did was to clarify that what Brown did amounted to distribution
rather than dispensing.
The SJC did not make conduct criminal
that otherwise, on a plain reading of the statute, would not have
been understood to be criminal.
Bouie, 415 F.3d at 355.
habeas relief is not warranted.
For the reasons stated above, I respectfully recommend that
the petitioner’s habeas corpus petition be DENIED.
are hereby advised that under the provisions of Federal Rule of
Civil Procedure 72(b), any party who objects to this recommendation
must file specific written objections thereto with the Clerk of
this Court within 14 days of the party's receipt of this Report
identify the portion of the proposed findings, recommendations, or
objections. The parties are further advised that the United States
Court of Appeals for this Circuit has repeatedly indicated that
failure to comply with Rule 72(b) will preclude further appellate
review of the District Court's order based on this Report and
Recommendation. See Keating v. Secretary of Health and Human
Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano
Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc.
v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v.
Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker,
702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
August 28, 2017
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