In May of this year, the First Circuit Court of Appeals continued its recent trend restricting the availability of habeas relief to state prisoners under 28 U.S.C. § 2254. In Simpson v. Matesanz, 175 F.3d 200 (1st Cir. 1999), the court held that the denial of a gatekeeper petition under G.L. c. 278, 33E by a single Justice provided independent and adequate state grounds precluding habeas review of a challenge to jury instructions.
The case came before the First Circuit is a somewhat unusual posture. A judge of the district court (Gertner, J.) had allowed Simpson's pro se habeas petition, finding the jury instructions on reasonable doubt to be fatally flawed. In so ruling, Judge Gertner had excused the claimed procedural defects. The Commonwealth appealed. The Appeals Court ultimately found a "procedural waiver" of the issue and held that the district judge was precluded as a matter of law from considering the merits of Simpson's claims.
Throughout the litigation in the federal courts, the Commonwealth argued for a rule that the denial of a "gatekeeper" petition in the Massachusetts courts constitutes an automatic procedural default. Such a rule would as a matter of law preclude habeas review in every case in which a gatekeeper denied relief. Judge Gertner dismissed this argument out of hand, holding that the "failure to get past the gatekeeper does not by itself block federal habeas review unless the single Justice clearly bases his denial of leave to appeal on a procedural bar." Simpson v. Matesanz, 29 F.Supp.2d 11, 15 (D.Mass. 1998). While the First Circuit implicitly rejected the Commonwealth's argument, the standards announced by the court may have the same the practical effect in most cases. Specifically, in any case where the petitioner arguably made a procedural misstep in the state courts, the federal courts will presume that the denial of a petition under G.L. c. 278, § 33E was on procedural grounds and will bar federal habeas relief. Only in "special circumstances" where it is clear that the single Justice did not rely on procedural grounds will this presumption be overcome. See Phoenix v. Matesanz, 189 F.3d 20, 25 and n.2 (1st Cir. 1999) (gatekeeper's denial under 33E, "was based on findings, supported by federal law, that the petitioner's claim [of ineffective assistance of counsel] was new but not substantial" and "did not expressly invoke a 'miscarriage of justice' standard under Massachusetts law").
Perhaps more troubling is the court's discussion of what constitutes a procedural default. The panel required strict adherence to the Massachusetts "contemporaneous objection" rule. Under that rule, a defendant must raise his objections as early as possible-at trial or on direct appeal. Issues not raised on direct appeal are deemed to be waived, and issues raised in a post-appeal collateral attack are not considered new. Further, even if the gatekeeper allows a petition under G.L. c. 278, § 33E, such review under the miscarriage of justice standard does not automatically waive the state's contemporaneous objection rule. Simpson v. Matesanz, 175 F.3d at 206.
In Simpson, the result of the court's ruling was particularly harsh. Simpson was convicted of first degree murder in the Massachusetts Superior Court in 1974. At trial, the judge defined the terms "moral certainty" and "reasonable doubt" using language that was deemed acceptable at the time. At the time of his first new trial motion in 1975 and direct appeal in 1976, there was no legal basis for challenging this language. In 1988, he challenged portions of this language for the first time in his third and fourth motions for a new trial. The trial judge denied the motions, noting that the issue should have been raised on direct appeal, and further noting that the instructions were not in error. A single Justice denied a gatekeeper petition. During the 1990's, as the Supreme Court finally recognized the error in the challenged instructions, see Cage v. Louisiana, 498 U.S. 39, 41 (1990); Victor v. Nebraska, 511 U.S. 1, 5 (1994), Simpson filed two more new trial motions. Both were denied on procedural grounds-that they should have been or were raised earlier-and Simpson's two subsequent gatekeeper petitions were summarily denied.
While Simpson's situation was somewhat unusual, his case may have implications in some rather common circumstances. What if appellate counsel fails to raise an issue on direct appeal and the defendant raises a claim of ineffective assistance of counsel in a motion for a new trial? What if appellate counsel raises under the substantial miscarriage of justice standard an issue not preserved at trial? Even if substantial and meritorious, these issues may be lost for purposes of habeas review.
Of course, a petitioner may seek relief from a finding of a procedural default under the "cause and prejudice" or "fundamental miscarriage of justice" standards. Again, however, the First Circuit places such relief almost out of reach. Simpson argued that the lack of any supporting federal or state case law gave him cause for his failure to raise this issue on direct appeal, but the court pointed to cases decided prior to his appeal which arguably foreshadowed Cage and Victor. Although these cases merely hinted at the argument he later raised and although such a challenge would certainly have failed, the court concluded that such an argument could nevertheless have been made. Simpson v. Matesanz, 175 F.3d at 213-215. Further, since Simpson could not show convincingly that he was actually innocent of the charges, he was not entitled to relief under the miscarriage of justice standard.
Although the First Circuit's decision effectively closes the door to the federal courts to many state prisoners, it may not be the last word on the subject. A petition for a writ of certiorari has been pending since July, and the Supreme Court recently requested the Commonwealth to file a response.
Assuming the most likely scenario-that the petition for certiorari is denied-Simpson calls for some extra diligence on the part of defense counsel. If there is an argument that you may wish to bring in the federal courts at some later time, that issue should be identified at trial and raised in the direct appeal even if the law is squarely against you. Further, in presenting any issues discovered after the direct appeal, you should press the trial court and the single Justice to find that the issues are new, and you should ask for a decision on the merits.
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(c) 1999 Dana Alan Curhan. All rights reserved.