Lewis H. Dickerson v. Arthur Latessa

872 F.2d 1116, 1989 U.S. App. LEXIS 5434, 1989 WL 38752

• Court: Court of Appeals for the First Circuit
• Decided: April 25, 1989
• Docket: 88-1764
• Status: Published

Opinions

LEVIN H. CAMPBELL, Chief Judge.

Lewis H. Dickerson appeals from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982).

Dickerson’s petition challenges on equal protection grounds the so-called “gatekeeper” provision of Mass.Gen.Laws Ann. ch. 278, § 33E (1981). Under that provision, a defendant like Dickerson who was convicted of a capital offense in a Massachusetts court is not entitled, following direct appeal, to appellate review of the denial of a post-conviction motion “unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full , court.” Dickerson contrasts that provision with other Massachusetts laws affording to non-capital defendants an unrestricted right to seek appellate review of the denial of . a post-conviction motion.

We hold that section 33E, when examined broadly in context of the special Massachusetts procedures for review in Capital cases, does not deny Dickerson the equal protection of the laws. We consequently affirm the district court’s denial of Dickerson’s petition.

I. BACKGROUND

Under Massachusetts law, defendants convicted of capital offenses are treated differently from those convicted of noncapi-tal offenses.¹ A capital defendant is given the right to. appeal from his conviction directly to the full bench of the Supreme Judicial Court (“SJC”) where he receives plenary review “regardless of the absence of claim of error.”² Commonwealth v. Brown, 376 Mass. 156, 168, 380 N.E.2d 113, 120 (1978). Section 33E states in pertinent part:

In a capital case ... the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence.

Section 33E “consigns the facts as well as the law to [the SJC’s] consideration, gives [the SJC] the power and duty exercised by a trial judge on a motion for new trial, and requires [the SJC] to consider the whole case broadly to determine whether there was any miscarriage of justice.” Commonwealth v. Hurley, 391 Mass. 76, 81, 461 N.E.2d 754, 757 (1984) (citations omitted). On several reported occasions, the SJC sua sponte has addressed issues discovered during the court’s plenary review under section 33E that the capital defendant overlooked. See, e.g., Commonwealth v. Repoza, 382 Mass. 119, 132, 414 N.E.2d 591, 599 (1980); Commonwealth v. Callahan, 380 Mass. 821, 822, 406 N.E.2d 385, 386 (1980).

In contrast, direct appellate review in noncapital cases is limited to issues raised on appeal and to claims of legal error which were preserved by objection at trial or which present a substantial risk of a miscarriage of justice. See Commonwealth v. Ely, 388 Mass. 69, 77-78, 444 N.E.2d 1276, 1281-82 (1983); Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3, 9 (1967).

The current dispute relates solely to the differences in the appellate review allowed for the denial of post-conviction motions. Section 33E provides in pertinent part:

If any motion [in a capital case] is filed in the superior court after [the filing of the rescript by the SJC], no appeal shall lie from the decision of [the superior court] upon such a motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court.

A capital defendant ought not be allowed to press an appeal where the issues raised in his post-conviction motion were or could have been raised at trial or on appeal. Commonwealth v. Ambers, 397 Mass. 705, 707-08, 493 N.E.2d 837, 839 (1986). “The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available at the time of trial or appeal.” Commonwealth v. Pisa, 384 Mass. 362, 365-66, 425 N.E.2d 290, 293 (1981). The determination of the gatekeeper judge under section 33E is unreviewable. Leaster v. Commonwealth, 385 Mass. 547, 548, 432 N.E.2d 708, 709 (1982).

Noncapital defendants, on the other hand, are allowed under Mass.R.Crim.P. 30(c)(8) an appeal as of right to the Appeals Court from the denial of a post-conviction motion, including motions that raise issues that could have been raised at trial but were not, although consideration of such issues is generally limited to determining whether there is a substantial risk of a miscarriage of justice. See, e.g., Reddick v. Commonwealth, 381 Mass. 398, 404, 409 N.E.2d 764, 769 (1980). Noncapital defendants may also petition for direct or further review by the SJC, Mass.R.App.P. 11, 27.1, and may also petition the Appeals Court for reconsideration. Mass.R.App.P. 27.

In September 1975 Dickerson was convicted in Suffolk Superior Court of first degree murder, armed robbery and unlawfully carrying a firearm. The SJC affirmed the conviction on direct appeal after reviewing the entire record pursuant to section 33E. Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977). Over two years later, Dickerson filed a motion for post-conviction relief in state superior court, challenging the constitutionality of the trial judge’s jury instructions. The superior court denied the motion. Dickerson sought leave under section 33E from a single justice of the SJC to appeal from the denial of the motion to the full court. The justice denied Dickerson leave to appeal, finding that his post-conviction claims did not present “a new and substantial question.” Dickerson subsequently brought an action for declaratory relief in state court, challenging the constitutionality of the gatekeeper provision of section 33E.³ The SJC rejected this challenge and upheld the statute. Dickerson v. Attorney General, 396 Mass. 740, 488 N.E.2d 757 (1986). Dickerson then filed this habeas corpus petition in federal court. The district court denied the petition. Dickerson v. Latessa, 688 F.Supp. 797 (D.Mass.1988). Dickerson appeals from this ruling.

II. DISCUSSION

The Fourteenth Amendment to the United States Constitution provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Under this clause,

absent a classification interfering with the exercise of a fundamental right or operating to the peculiar disadvantage of a suspect class, see Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 [, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520] (1976), a state’s conduct need only bear a reasonable relationship to some proper object. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S.Ct. 560, 561, 64 L.Ed. 989] (1925).

Bauza v. Morales Carrion, 578 F.2d 447, 450 (1st Cir.1978). This deferential “rational basis test” applies, therefore, except when the legislative classification implicates a fundamental right or disadvantages a suspect class; strict judicial scrutiny is warranted in the latter two circumstances, and the challenged statute may then stand only if it advances a compelling governmental interest. See Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 2380, 53 L.Ed.2d 484 (1977); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-1288, 36 L.Ed.2d 16 (1973).

We conclude that the “rational basis test” is the appropriate standard of review in this case. Dickerson does not and could not successfully contend that, as a person convicted of first degree murder, he is a member of a suspect class. See Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (capital defendants not a suspect class for equal protection purposes), cert. denied, — U.S. -, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987). Nor does the gatekeeper provision of section 33E interfere with the exercise of a fundamental right. The Supreme Court has held that a state is not constitutionally obliged to provide even a direct appeal for a criminal defendant. Ross v. Moffitt, 417 U.S. 600, 606, 94 S.Ct. 2437, 2441, 41 L.Ed.2d 341 (1974); McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). There can hardly be, therefore, a fundamental right to appellate review of a trial court’s post-conviction rulings. Cf. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (no constitutional right to counsel in post-conviction proceeding); United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (no absolute right to free transcript in post-conviction appeal). In any case, section 33E does not deny Dickerson all opportunity for appellate review of post-conviction claims for relief. He may secure review of probably the most urgent category of such claims, namely, those that are “new and substantial.” See Leaster v. Commonwealth, 385 Mass. 547, 550, 432 N.E.2d 708, 710 (1982) (single justice review under section 33E “will allow access to the full court in meaningful matters”). Section 33E is aimed at screening out frivolous and procedurally waived claims raised after the defendant was once afforded the enlarged review by the SJC to which a capital defendant is specially entitled on direct appeal.

Support for use of the “rational basis test” appears in the Supreme Court’s language in cases dealing with access to the appeals process. See Estelle v. Dorrough, 420 U.S. 534, 538, 95 S.Ct. 1173, 1176, 43 L.Ed.2d 377 (1975) (“[T]his Court in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases ha[s] applied the traditional rational-basis test.”). See also Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966). It is true, as the district court has pointed out, Dickerson, 688 F.Supp. at 800, that in certain analogous cases the Supreme Court has arguably exercised a somewhat heightened level of scrutiny in striking down the challenged legislative classification. See, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state must furnish indigent criminal defendant with free trial transcript if such a transcript is necessary for effective appellate review); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 (1963) (invalidating rule requiring state appellate courts to appoint appellate counsel for indigent only upon a finding that appointed counsel would be helpful to the defendant or the court). But the above cases are distinguishable in that the invalidated impediments to an effective appeal were based on wealth, and consequently appear not only to implicate equal protection concerns but also due process safeguards as well. Evitts v. Lucey, 469 U.S. 387, 403-05, 105 S.Ct. 830, 839-40, 83 L.Ed.2d 821 (1985) (due process played a “significant role” in these cases). See also Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct. 2064, 2068, 76 L.Ed.2d 221 (1983); Ross v. Moffitt, 417 U.S. 600, 608-09, 94 S.Ct. 2437, 2442-43, 41 L.Ed.2d 341 (1974). The Ninth Circuit has stated, “[a]t least where the classification at issue is not based on wealth, the right to appeal is not considered a fundamental right” for equal protection purposes. United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986) (Kennedy, J.) (citing Bell v. Hongisto, 501 F.2d 346, 353-54 (9th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975)). See also United States ex rel. Grundset v. Franzen, 675 F.2d 870, 874 (7th Cir.1982); G. Stone, L. Seidman, C. Sunstein, M. Tushnet, Constitutional Law 797 (1986). We consequently apply the “rational basis test” in examining whether section 33E violates the equal protection clause.⁴

In applying that test here, we must determine whether “ ‘the distinctions that are drawn [by section 33E] have some relevance to the purpose for which the classification is made.’ ” Estelle, 420 U.S. at 539, 95 S.Ct. at 1176 (quoting Rinaldi, 384 U.S. at 309, 86 S.Ct. at 1499). Under this deferential approach, the “legislation is presumed to be valid,” City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985), and will not be overturned “ ‘unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’ ” Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 859, 99 L.Ed.2d 1 (1988) (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979)). See also City of Dallas v. Stanglin, — U.S. -, -, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989).

Section 33E satisfies the foregoing. The distinction drawn between capital and noncapital defendants in post-conviction appeals, when.viewed in the context of the whole Massachusetts appeals process, is rationally related to the twin legislative objectives of assuring that the Commonwealth's highest court thoroughly review convictions of the most serious of offenses on a direct appeal, and at the same time, of relieving that court from the burden of subsequently entertaining waived or frivolous claims. Section 33E grants to the capital defendant the unique right to appeal directly to the SJC, the state’s highest court, for plenary review of his conviction. On this direct appeal, the SJC, in a broad review to detect any miscarriage of justice, examines the entire record for factual as well as legal error, including errors not challenged by the defendant at trial or on appeal. By being able to examine issues that would not be open for scrutiny in the direct appeals of noncapital defendants, the SJC presumably reduces the number of matters calling for later review, making it reasonable to narrow the scope of any future review in the same case. As the SJC will have already become familiar with the record, it is also reasonable to channel to it, rather than to the Appeals Court, the post-conviction motions of capital defendants. And because the SJC, as the Commonwealth’s highest court, possesses many responsibilities and will already have reviewed the entire record under the liberal standard, it is not unreasonable to delegate to a single justice of the SJC the authority to screen out, on the SJC’s behalf, those appeals that do not present “a new and substantial question.” We accordingly hold that section 33E’s gatekeeper provision does not deny Dickerson the equal protection of the laws.

Affirmed.

1 . Section 33E’s special review procedures are limited to "capital cases.” The statute defines a "capital case” to "mean a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree.” Here we use the term "capital offense” and "capital defendant” as a shorthand for first degree murder and those convicted of this offense. No Massachusetts defendant, including one convicted of first degree murder, may presently be subjected to the death penalty. See Dickerson v. Attorney General, 396 Mass. 740, 741 n. 1, 488 N.E.2d 757, 758 n. 1 (1986). Conviction of first degree murder, however, subjects defendant to a mán-datory term of life imprisonment without the possibility of parole. Mass.Gen.Laws. Ann. ch. 265, § 2 (Supp.1988).

2 . The SJC is Massachusetts’s highest court. Below it is the intermediate Massachusetts Appeals Court. Most criminal appeals are reviewed as of right in the Appeals Court; review of noncap-ital appeals in the SJC is limited, requiring the SJC’s special permission. Capital cases form a select group which go directly to the SJC without prior Appeals Court review and without the SJC's special permission.

3 . Before bringing this action for declaratory relief in state court, Dickerson challenged the constitutionality of section 33E in a habeas corpus petition filed in federal court. This petition was dismissed for failure to exhaust state remedies. Dickerson v. Walsh, 750 F.2d 150 (1st Cir.1984).

4 . State courts have applied the "rational basis test" in somewhat similar circumstances. See Payne v. Commonwealth, 233 Va. 460, 357 S.E.2d 500, cert. denied, — U.S. -, 108 S.Ct. 308, 98 L.Ed.2d 267 (1987); Ennis v. State, 306 Md. 579, 510 A.2d 573 (1986); Browning v. State, 254 Ga. 478, 330 S.E.2d 879 (1985); City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980), appeal dismissed, 451 U.S. 964, 101 S.Ct. 2037, 68 L.Ed.2d 343 (1981).