MEMORANDUM AND ORDER
Petitioner Anthony Mazza seeks habeas corpus relief from his Massachusetts state court first degree murder and robbery conviction for which he is serving a life sentence without the possibility of parole. Mazza's original petition sought relief on four separate grounds. He now asks to withdraw two of those grounds from the petition voluntarily, having agreed with the respondent that they are unexhausted. Respondent contends that the remaining grounds of the petition cannot succeed on the merits.
On July 17, 1974, the Supreme Judicial Court ("SJC") of Massachusetts affirmed Anthony Mazza's conviction for murder in the first degree and robbery. Commonwealth v. Mazza, 366 Mass. 30 (1974). The SJC stated the facts in support of the convictions as follows.1
The morning of June 30, 1972, Mazza asked Robert Anderson, who had known Mazza for several months, if he could use Anderson's apartment. Anderson gave Mazza permission to use the apartment. They spent the evening apart. Anderson returned to the apartment at approximately 2:45 am. Upon his return, he found Mazza wearing leather gloves and standing beside the body of a dead man. The dead man was lying face up with his pants pockets turned inside out. It was later determined that he died of strangulation.
The SJC described the subsequent events as follows:
Anderson asked the defendant what had happened and was told that the defendant had `had a struggle.' The defendant then stated that they should get the body out of the apartment immediately, and he began to tie up the dead man. He asked Anderson to help him and told Anderson not to mention what he had seen or he would be shot `or whatever.' Despite Anderson's disagreement, the defendant said he would remove the body from the apartment on the following day, and he gave Anderson a watch, a ring, and a car key. These were shown later to be the property of the dead man. The body was then placed in a closet in the back hallway of the apartment. There was no lock on the closet door at that time. The defendant later bought a lock and installed it on the door.
Mazza, 366 Mass. at 31. During the trial, the Commonwealth presented evidence that the defendant used the victim's credit cards and his automobile. Evidence also indicated that the victim and another man, whom the jury found had an appearance consistent with Mazza, had left a night club together that night. Id. at 32.
After conviction, Mazza filed a direct appeal to the SJC, arguing, in the court's words, no specific "assignments of error," but contending that the court exercise its power under Mass. Gen. Laws ch. 278 § 33E and reduce the verdict to a lesser degree of guilt. Mazza, 366 Mass. at 31. Mazza sought reduction of the verdict on the basis of mental retardation and consequent diminished criminal responsibility. Id. On July 17, 1974, the SJC issued an opinion declining to modify the verdict of the jury, finding it "fully warranted" on the evidence. Id. at 30-31.
Mazza filed successive motions for new trial in the trial court, each amending the preceding motion, on July 11, 1977, May 1, 1978, September 13, 1988, July 2, 1990, and December 18, 1990. On August 5, 1991, the trial court denied his motion for new trial.
Mazza next sought leave to appeal the order from a single "gatekeeper" justice of the SJC.2 On December 2, 1991, Justice Greaney of the SJC denied his application on the grounds that none of the grounds raised by Mazza were "substantial." Mazza refiled the same application on April 16, 1993. This application was denied on June 28, 1996.
On May 1, 1995, Mazza filed a second motion for new trial, which was denied on December 19, 1996. The petitioner filed another gatekeeper petition with the SJC on February 11, 1998. This second gatekeeper petition was an appeal from the denial of the second motion for new trial. In response, the Commonwealth filed a motion to dismiss. On June 3, 1998, Mazza filed an application under Mass. Gen. Laws ch. 211 § 3 to allow late filing of notice to appeal and to appeal the denial of the second motion for new trial pursuant to § 33E. In an opinion dated August 4, 1998, Justice Greaney determined Mazza's efforts to obtain leave to appeal to be timely, denied the Commonwealth's motion to dismiss the petition and denied leave to appeal on the merits.
Mazza's petition for writ of habeas corpus was filed in this court on August 2, 1999. The petition contains four grounds stated as follows:
[One] The defendant's mental retardation and consequent criminal responsibility.
[Two] The trial court erred in the instruction to the jury for the presumption of malice and shifted the burden of proof to the defendant to establish the absence of malice.
[Three] The trial court erred in defining reasonable doubt as that standard used in making decisions in the major affairs of the jurors' lives.
[Four] The standard of beyond a reasonable doubt was further confused for the trial court's repeated use of "finding" and "satisfied" language wherein the standard would be understood to mean more likely than not.
Respondent subsequently filed a motion to dismiss the petition as time-barred. On September 28, 2000, Judge Lindsay granted respondent's motion. On appeal, the First Circuit vacated the judgment of dismissal and remanded the case.3 See Mazza v. Hall, 2002 WL 338720 (1st Cir. Mar. 4, 2002) (unpublished). The case was thereupon transferred to this session.
The respondent, in his memorandum of law in opposition to Mazza's petition following remand, contends that, in addition to each ground failing on the merits, grounds one and four of the petition are unexhausted, that grounds two, three, and four are "procedurally defaulted," and that all of the grounds "challenge the state court's interpretation and application of state law and are thus not cognizable in habeas review." In reply, Mazza seeks to withdraw grounds one and four voluntarily, conceding that those grounds have not been exhausted, and he requests that the court reach the merits of the unexhausted claims: Grounds two and three. [Doc. 41.]
Petitioner and respondent having agreed that grounds one and four of the petition are unexhausted, I now turn to an evaluation of Ground two, which I will refer to as the "presumption of malice" jury instruction, and Ground three, the "reasonable doubt" jury instruction. Respondent maintains that the state court's adjudication of these claims was not contrary to, or an unreasonable application of, clearly established federal law.4
A. Standard of Review
Review of Mazza's petition is governed by the Antiterrorism and Effective Death Penalty Act (the "AEDPA" or the "Act") because the petition was filed after the effective date of the Act. E.g., Medina v. Matesan, 298 F.3d 98 (1st Cir. 2002); see Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under the AEDPA, a federal court shall not grant an application for a writ of habeas corpus unless the state court adjudication:
(1) 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) 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). A state court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases." James v. Marshall, 2003 WL 1210204, at *2 (1st Cir. Mar. 14, 2003) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). The state court has made an "unreasonable application" of clearly established law if the court "`identifies the correct governing legal principle from [Supreme Court] cases but unreasonably applies it to the facts' of the petitioner's case, or 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." James, 2003 WL 1210204, at *2 (quoting Williams v. Taylor, 529 U.S. at 407).
B. Review of State Court Decision
I must first determine which "state court decision" should be the focus of this court's attention. Respondent treats the first gatekeeper opinion as the relevant state court decision. I agree. The second gatekeeper opinion only discusses petitioner's objection to the use of the term "moral certainty" in the jury instructions. Although petitioner again raised an aspect of what is now Ground three in his second gatekeeper petition, the only possible reference to that ground in the second gatekeeper opinion is the sentence: "The instruction on reasonable doubt also contained no infirmity sufficient enough to bring into play the rule in Sullivan v. Louisiana, 113 S.Ct. 2078 (1993), concerning structural error."
Because the first opinion of the gatekeeper justice is the "last reasoned opinion" to address both Grounds two and three, I will focus my attention on the first opinion. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991) (determining whether an unexplained order rested primarily on federal law by looking at the last reasoned opinion on the claim); Phoenix v. Matesanz, 189 F.3d 20, 25 (1st Cir. 1999).
1. Ground Two
In the first gatekeeper opinion, Justice Greaney rejected the argument that the trial judge improperly shifted the burden of proof to Mazza to establish the absence of malice by instructing the jury that "malice is implied from any deliberate or cruel act against another, however, sudden." Justice Greaney reasoned that because the only contested issue at trial was the identity of the murderer, and not whether the victim had been murdered by strangulation, if the jury decided that it was the defendant who had strangled the victim, "the evidence introduced at trial would permit only the conclusion that he did so with malice aforethought." Consequently, he reasoned, "the phrase creating a presumption of malice was harmless. Commonwealth v. Doherty, 411 Mass. 95, 99-101 (1991)."
The three-part test in Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990) applies to alleged Sandstrom errors,5 such as the instruction here. See Libby v. Duval, 19 F.3d 733 (1st Cir. 1994). The First Circuit has summarized the Hill test as follows:
Under Hill, a reviewing court must first determine whether a reasonable juror would have interpreted the challenged portion of the instruction as creating a mandatory presumption. If so, the court must then consider whether other parts of the charge clarified the ill-advised language with the result that a reasonable factfinder would not have understood the instruction to create an unconstitutional presumption. Finally, if the court determines that the charge as a whole left the jurors with an impermissible impression, the court must proceed to evaluate the harmlessness of the vel non of the error.
Anderson v. Butler, 23 F.3d 593, 595 (1st Cir. 1994); see Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir 1996).
In Libby v. Duval, the trial judge gave an instruction almost identical at issue here; the judge informed the jury that "[m]alice is implied in every deliberate cruel act by one against another." Libby, 19 F.3d at 736. The respondents in Libby conceded that this instruction created a mandatory presumption, and the First Circuit agreed. Id. at 736. The instruction also failed the second part of the Hill test; the First Circuit found that other language in the instructions did not explain the "infirm language" sufficiently such that the jury could have understood the instruction not to create an unconstitutional presumption. Id. at 736-37.
In light of the similarity between the instruction here and in Libby, I also find that the trial judge's instruction on malice created a mandatory presumption. Furthermore, there is no other language in the instructions that would sufficiently explain the infirm language.
In the third part of the Hill test, I must determine whether the erroneous instruction was harmless. See Libby v. Duval, 19 F.3d at 737. On federal habeas review, a court must uphold a state court judgment as long as an error did not have "a substantial, injurious effect on the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see Sanna, 265 F.3d at 14; Libby, 19 F.3d at 737.6
There is some question as to whether Brecht applies where the state court has not applied the Chapman harmless-error analysis. See Sanna v. Dipaolo, 265 F.3d 1, 14 n. 6 (1st Cir. 2001); Fortini v. Murphy, 257 F.3d 39, 48 (1st Cir. 2001). Here, the SJC gatekeeper did not apply the Chapman analysis; instead, the opinion cited to a portion of Commonwealth v. Doherty, 411 Mass. 95, 99-101 (1991) that concerned whether a constitutional error existed at all.7 The First Circuit has not ruled on this issue, but has noted that "most of [the] expression of rationale" in Brecht "suggests that the Brecht test applies in habeas cases regardless of whether the state court itself made a Chapman harmless error analysis." Fortini, 257 F.3d at 48 (citing Tyson v. Trigg, 50 F.3d 436, 446 (7th Cir. 1995)).
Nevertheless, here, because the only contested issue at trial was the identity of the murderer, and because as such malice was not contested at trial, I agree with the thrust of the SJC gatekeeper's reasoning and find that the instructions at issue could not have had a substantial and injurious effect on the jury's verdict. In this connection I note that the First Circuit has found malice instructions "constitutionally defective" but harmless in at least three cases involving petitioners who had not contested malice at trial, but who had instead denied that they had committed the murder as charged. See Sanna v. Dipaolo, 265 F.3d at 15; Medina, 298 F.3d at 101; Bembury v. Butler, 968 F.2d 1399 (1st Cir. 1992).
2. Ground Three
In Ground three, petitioner argues that the trial court erred by defining reasonable doubt as "the same degree of satisfaction of mind and conscience that jurors would have when they take action in the major affairs of their lives."
The Due Process Clause requires that in every criminal trial the state prove every element of the offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The question at hand then is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, 511 U.S. 1, 6, (1994); see Watkins v. Murphy, 292 F.3d 70, 77 (1st Cir. 2002).
In the first gatekeeper order, Justice Greaney reached the merits of the issue of the jury instruction on reasonable doubt. He found that the trial judge's instruction, "did not suffer from the infirmity of giving specific examples of major affairs," rather, the trial judge stated that he would not "attempt to define for you what are the major affairs of your lives." The gatekeeper opinion then quoted from Commonwealth v. Libby, 405 Mass. 231, 233-34 (1989): "The judge's reference to proof beyond a reasonable doubt as requiring proof `to that degree of certainty upon which you would act in the important affairs of your own life,' without his making any accompanying reference to examples, is not ground for reversal." Libby, 405 Mass. at 233-34.
The jury charge given here is quite lengthy. Nevertheless, for relevant context, I need provide only some of the language surrounding the objectionable language. The language directly preceding the sentence to which the petitioner objects reads as follows:
[Reasonable doubt] is proof, our Supreme Judicial Court has said, to a moral certainty; that is, not a mathematical certainty; that is, not a scientific certainty which is capable of exactness, because human beings are endowed with a free will and they are capable of independent action, and you cannot take their conduct and put it into a test tube or computer and come up with an absolute precise answer.
The trial court followed the sentence at issue with this statement:
I do not attempt to define for you what are the major affairs of your lives. I leave it to your experience and I leave it to your wisdom when you take vital action in your every day lives. Certainly, you should be satisfied to a moral certainty that what you are doing is right. None of us have a crystal ball. All we can do is weigh the pros and cons against any contemplated course of action, and then in the wisdom and intellect that we possess, make a decision. We may be right; we may be wrong, but if we are satisfied to a moral certainty when we do an act in our private lives that is the right thing to do, we have a settled conviction of mind. That is the degree of proof which the law contemplates when they talk about proof to a moral certainty.
From this point, the trial judge continued on with the definition of reasonable doubt in "more precise and scholarly language of our Supreme Judicial Court." This language is strikingly similar to, in fact almost identical to, the jury instructions excerpted in Gilday v. Callahan, 59 F.3d 257 (1st Cir. 1995). In Gilday, while the First Circuit recognized the shortcomings of the "the major affairs of your lives" instruction, it held that because the instruction did not use specific examples of those affairs, and "because the charge focused on `vital' or `major' personal matters," it was "unlikely" that the instruction deprived the defendant of "the right to be found guilty only upon proof beyond a reasonable doubt." Gilday, 59 F.3d at 264. So too here.
For the reasons set forth more fully above, I hereby DENY petitioner's application for habeas corpus relief because the state court determination was neither contrary to nor an unreasonable application of clearly established federal law.
1. The facts underlying Mazza's conviction, as set forth in Commonwealth v. Mazza, 366 Mass. 30 (1974), are presumed to be correct under 28 U.S.C. § 2254(e)(1). See Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir. 2002).
2. Pursuant to Mass. Gen. Laws ch. 278 § 33E, the "gatekeeper" justice considers whether to grant a motion for leave to appeal from an order denying a request for a new trial. Accord Moore v. Ponte, 186 F.3d 26, 30 n. 1 (1st Cir. 1999). The gatekeeper justice may allow an appeal if it presents a "new and substantial question which ought to be determined by the full court." Mass. Gen. Laws ch. 278 § 33E.
3. The First Circuit noted that its remand was without prejudice to either this court's or the parties' raising the relevance of the Supreme Court's then-forthcoming decision in Carey v. Saffold, 536 U.S. 214 (2002). See Mazza v. Hall, 2002 WL 338720 (1st Cir. Mar. 4, 2002). As decided, Carey does not appear to bear upon this case.
4. Although respondent in the introduction to his opposition declares that "grounds two, three, and four are procedurally defaulted," he states later that he has not based its opposition to Grounds two and three on procedural default grounds because the first decision of the SJC gatekeeper addressed petitioner's claims on the merits and did not invoke any procedural bar against the petitioner.
5. So-called Sandstrom errors arise from jury instructions that have the effect of relieving the prosecution of the burden of proof on an element of the crime charged in violation of Due Process. See Sandstrom v. Montana, 442 U.S. 510 (1979); see also Libby v. Duval, 19 F.3d 733, 734 (1st Cir. 1994).
6. The First Circuit has held the Brecht standard applies to cases arising under the AEDPA. Sanna, 265 F.3d at 14; see also Aleman v. Stearnes, 320 F.3d 687, 690 (7th Cir. 2003) (noting that the Supreme Court has utilized the Brecht standard on collateral review twice since the enactment of the AEDPA).
7. The gatekeeper justice cited to Doherty for the proposition that "the phrase creating a presumption of malice was harmless," even though the portion of the Doherty opinion he cited to, pp. 99-101, did not discuss the test for harmless error. The Doherty opinion determined there that certain language in the jury instruction did not constitute constitutional error. Id. at 99-101. Doherty did evaluate whether language in the jury instruction was erroneous but harmless; however, that particular portion of the instruction was not discussed on pages 99-101. See id. at 102-05.
Furthermore, the portion of the Doherty opinion to which the gatekeeper opinion cites was good law for only two days after the December 2, 1991, gatekeeper opinion was written. In determining whether an unconstitutional presumption had arisen, on pages 99-101, the Doherty court applied a test that the Supreme Court rejected in an opinion decided on December 4, 1991. The Doherty court had asked "whether a reasonable juror could have understood the challenged language to direct him or her in the circumstances of this case to accept or presume conclusively the existence of malice solely from the fact that there was a killing." That test was rejected by the Supreme Court in Estelle v. McGuire, 502 U.S. 62, 73 n. 4 (1991). In Estelle, the court clarified that the standard of review for federal habeas courts is not what a reasonable juror would have understood an instruction to mean, but "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Estelle, 502 U.S. at 72 (citing Boyde v. California, 494 U.S. 370, 380 (1990)).