TORRUELLA, Circuit Judge.
Convicted of armed robbery, assault and battery, and intimidation of a witness, Petitioner-Appellant Michael King ("King") appeals from the federal district court's denial of his petition for a writ of habeas corpus. King v. MacEachern, No. 08-10373, 2010 WL 3258870 (D.Mass. Aug. 17,
A. Midnight Robbery at the Mart
On September 9, 2003, Michael Jacques ("Jacques"), a clerk at DB Mart, a convenience store located in Springfield, Massachusetts, was working the 5:00 p.m. to 12:00 a.m. shift alone. At approximately 11:30 p.m., King, a regular customer at the mart, entered and left. At midnight, Jacques, having completed his shift, began to close the store. While in the process of closing, King returned. King knocked on the now-locked doors and asked to be let in so he could look for a pager he claimed to have left behind during his earlier visit. Following a brief conversation, Jacques opened the door and assisted King in searching the aisles for the missing pager. The pager never surfaced. Jacques asked King to leave, recommending that he return in the morning to speak with the mart's manager.
Without warning, King punched Jacques on the left side of his face. King then tackled Jacques, placed him in a "choke hold," and knocked him to the floor and up against his bicycle, which Jacques had parked inside the store. King then tried to open the cash register. On seeing Jacques begin to get up from the floor, King warned, "I'm going to blow a hole in your head if you get up and move." Jacques, taking King at his word, resumed his prior position on the floor. He did not see King with a gun or other weapon.
King ordered Jacques to tell him how to open the cash register; Jacques complied. King removed approximately $1,400 from the cash register, took Jacques's bicycle, and before leaving, asked Jacques where the videotapes from the store's security camera were located. Jacques told him they were in the manager's office and that he did not have access to them. King warned that "[i]f he saw [Jacques] on 22 News [a Springfield television program] he was going to come back and kill [him], [his] whole family, [his] buddy Ben, all of that." King, 866 N.E.2d at 941. King then left, taking Jacques's bicycle.
Several minutes later, Jacques got up from the floor and called the police. Officers arrived on the scene and searched the surrounding area, but to no avail; they did not find an individual matching King's description. Further investigation, however, proved fruitful. On September 11, 2003— one day after the robbery—police apprehended King and arrested him. No weapon was found on his person or in the nearby area at the time of arrest.
B. Indictment and Conviction
A grand jury indicted King for two counts of armed robbery, Mass. Gen. Laws ch. 265, § 17 (1998); one count of assault and battery, Mass. Gen. Laws ch. 265, § 13A (2002); and one count of intimidation of a witness, Mass. Gen. Laws ch. 268, § 13B (2010). A jury trial was held, at which the trial judge merged the two armed robbery charges. The jury convicted
C. Challenging the Conviction: Seeking Appellate and Habeas Relief
King first appealed his conviction to the MAC. See King, 866 N.E.2d 938. He raised three arguments: (1) the trial judge improperly denied King's motion for a required finding of not guilty as to the armed robbery charge because there was insufficient evidence showing he was in possession of a weapon at the time of the robbery; (2) the trial judge wrongly denied King's motion for a required finding of not guilty as to the intimidation of a witness charge because the evidence did not show he intimidated a person furnishing information to a criminal investigator; and (3) the trial judge improperly broadened the scope of the witness intimidation statute in administering the jury instructions. The MAC affirmed King's convictions. King, 866 N.E.2d at 940.
Addressing each argument, the MAC held that (1) the evidence at trial established that King threatened to shoot the victim, that he was arrested a day later without a weapon, and thus, the jury's inference that King actually had a weapon when he threatened Jacques was not improper, id. at 943-44; (2) King construed the witness intimidation statute too narrowly; the jury, in evaluating the evidence and the circumstances in which King's statement was made, rationally could have determined that King intended to intimidate Jacques from providing an official investigating authority information related to the robbery, id. at 944-45; and (3) the trial judge's instructions were proper
King then turned to the Massachusetts Supreme Judicial Court ("SJC") to challenge the MAC's determinations, filing an application for leave to obtain further appellate review ("ALOFAR"). He raised two arguments. He first asserted that the MAC erred in holding that a defendant may be convicted of armed robbery based solely on a statement that he would "blow a hole" in a victim's head, with no additional direct or circumstantial evidence confirming the existence of a weapon at the scene of the alleged crime. Second, he argued that the MAC "too broadly interpret[ed] the witness intimidation statute's `criminal investigator' prong to include an instance where a defendant warned a victim not to speak with the television broadcast media." The SJC denied King's ALOFAR. Commonwealth v. King, 449 Mass. 1108, 871 N.E.2d 491 (2007).
Thereafter, a federal district court evaluated King's habeas petition pursuant to 28 U.S.C. § 2254, considering only the two issues submitted before the SJC, i.e., whether the state court's decision constituted an unreasonable application of federal law because there was insufficient evidence
Just as a builder cannot lay his first brick without a blueprint, we begin our analysis by sketching the applicable framework for federal habeas review of state-court convictions. We then address each of King's constitutional claims in turn.
A. Standard of Review
A habeas petitioner asserting an unreasonable application of federal law claim stands at the base of a very steep mountain, which we scale alongside him—ever mindful that our accompanying alpinist is on different footing than most appellees and must surmount "`a substantially higher threshold' for obtaining relief than de novo review." Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)) (noting this "substantially higher threshold" in the context of a habeas petitioner's unreasonable application of federal law claim under § 2254(d)(1)). We begin our ascent.
"We review the district court's denial of habeas relief de novo." Shuman v. Spencer, 636 F.3d 24, 30 (1st Cir.2011) (quoting Lynch, 438 F.3d at 44). In conducting this review, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") mandates that we remain highly deferential towards the state court's decision if it adjudicated the relevant claim on the merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.2010); Rashad v. Walsh, 300 F.3d 27, 34 (1st Cir.2002) (citing Lindh v. Murphy, 521 U.S. 320, 322, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Because King's claim was adjudicated on the merits by the state court, we may only grant relief if the state court proceeding:
28 U.S.C. § 2254(d).
King's underlying claim is one of insufficient evidence, calling upon a federal constitutional rule derived from the Due Process Clause of the Fourteenth Amendment and set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Sivo v. Wall, 644 F.3d 46, 50 (1st Cir.2011).
Because King asserts that the lower court unreasonably applied the sufficiency standard as set forth in Jackson— making no arguments that the state court rulings are contrary to Supreme Court precedent—our analysis is governed by the provisions of § 2254(d)(1). See Foxworth v. St. Amand, 570 F.3d 414, 424-25 (1st Cir.2009) (providing "[t]his is an `unreasonable application' case; no colorable arguments are made suggesting that the relevant state-court rulings are directly `contrary to' clearly established Supreme Court precedent"). To show an unreasonable application of federal law, "[s]ome increment of incorrectness beyond error is required." Jewett v. Brady, 634 F.3d 67, 74 (1st Cir.2011) (quoting McCambridge, 303 F.3d at 36) (internal quotation marks omitted); see also Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (cautioning that "an unreasonable application of federal law is different from an incorrect application of federal law"); Kibbe v. DuBois, 269 F.3d 26, 36 (1st Cir.2001) ("[A] federal court cannot grant habeas relief simply because it disagrees with or finds error in the state court's application of federal law.").
The SJC, Massachusetts' highest court, denied King's ALOFAR. We therefore must "look through to the last reasoned decision" in evaluating the basis for the state court's holding. Clements, 592 F.3d at 52 (quoting Malone v. Clarke, 536 F.3d 54, 63 n. 6 (1st Cir.2008) (internal quotation marks omitted)). Accordingly, we turn to the MAC's decision in King, 866 N.E.2d 938, to assess King's sufficiency of the evidence claims, remaining ever alert to the fact that we review each of his two claims with reference to the specific elements of the contested state law offense. See DeBurgo, 587 F.3d at 68-69.
B. Sufficiency of the Evidence
1. Armed Robbery
King argues the MAC improperly affirmed his conviction for armed robbery
a. State Law: Requisites to an Armed Robbery
Massachusetts law defines armed robbery as when a person, "armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny." Mass. Gen. Laws ch. 265, § 17. Thus, for an individual to be convicted of armed robbery under Massachusetts law, the jury must conclude that (1) the individual committed a robbery, and (2) commissioned the crime while in possession of a weapon.
In addition to not requiring an actual showing of a gun's presence at the scene of the robbery, Massachusetts law permits a jury to take a party "at his word" and rely on a defendant's statement made during the commission of a crime that he is armed with a weapon to be a highly probative factor towards establishing possession— even if no evidence shows a defendant used or displayed a weapon during the offense. Commonwealth v. Delgado, 367 Mass. 432, 326 N.E.2d 716, 718-19 (1975) (stating that where defendant warned robbery victim that he "would and could shoot. . . thus impliedly informing the victim of the presence and possession of a gun . . . the jury could reasonably conclude that the defendant should be taken at his word," even where "there was no direct evidence of a gun, no gun was seen by the store manager, and no gun was found on
Furthermore, even if no evidence actually establishes that a gun was on a defendant at the time of the robbery, if a defendant feigns or asserts he is armed at the time of the crime and, between its occurrence and his apprehension, has a subsequent opportunity to dispose of the weapon, Massachusetts courts have held that a rational juror may reasonably conclude that a defendant was armed during the robbery beyond a reasonable doubt. See Commonwealth v. Samuel Jackson, 419 Mass. 716, 647 N.E.2d 401, 406 (1995) (holding that, where defendant's conduct and words at time of crime—specifically, defendant's hand in jacket creating suggestive weapon-like appearance while stating, "I'll blow you away"—suggested he was armed, and where defendant had opportunity between the crime and the arrest to dispose of any such weapon, "there is no reason [for a juror] not to take an assailant at his word" and to conclude he was armed during the robbery); cf. Howard, 436 N.E.2d at 1212 (providing that where defendant's conduct and words at time of crime suggested he was armed, but where defendant had no opportunity between crime and arrest to dispose of weapon, and where police immediately were able to confirm defendant was not in fact armed during the crime, "[t]he evidence would not have warranted the jury in finding, on the basis of a reasonable inference and beyond a reasonable doubt . . . that the defendant had a gun").
Thus, in sum, under Massachusetts law, a juror may—but is not required to—rationally conclude that a defendant was armed during a robbery—even if no evidence directly shows the defendant in fact was armed—if (1) a defendant represents (through words and/or conduct)
b. State Court Decision: No Unreasonable Application of Federal Law
The MAC correctly articulated Massachusetts law as to armed robbery, providing that convictions for armed robbery "are not limited to instances in which a defendant actually uses or displays the weapon." King, 866 N.E.2d at 941. Further, the MAC accurately noted the highly probative nature under Massachusetts law of a defendant's statement that he is armed during a robbery for purposes of assessing the rationality of a jury's findings. See id. at 942-43. It also acknowledged some tension between Delgado and Howard, but clarified their holdings pursuant to established state law:
Id. (internal citation omitted).
Applying governing Massachusetts law to the record, and viewing all evidence in a light most favorable to the government, the MAC held that a reasonable juror could have found King had a gun at the time of the robbery. Id. at 943. Indeed, in reviewing the facts, the MAC specifically noted the defendant's warning to the victim, "I'm going to blow a hole in your head if you get up and move," id. at 941, and the one day lapse of time between the robbery and the defendant's arrest, id., as evidence supporting the jury's finding. See id. at 943 ("[W]e conclude that the jury's inference that the defendant actually carried a dangerous weapon at the time of the robbery was permissible. The evidence supported findings that the defendant
King attempts to counter such circumstantial evidence by arguing that a conviction for armed robbery under Massachusetts law cannot stand on a defendant's verbal statement alone; stated differently, where no evidence established that a defendant made "any gesture or behavior to indicate the presence of a weapon," or "where the defendant's hands could not be seen" during the crime, and "where the arrest of the petitioner did not take place at the scene of the offense," King contends that a "conviction for armed robbery is not based on legally sufficient evidence and violates the protections of the Due Process Clause of the Fourteenth Amendment." As our prior review of governing state law on armed robbery shows, this is not a correct articulation of Massachusetts law.
Without belaboring the point, Massachusetts courts have held that a conviction for armed robbery may stand, even if a defendant does not display a weapon during the robbery or make a gesture indicating possession of the same, provided that other evidence creates a reasonable inference that a defendant was armed at the time of the crime. See, e.g., Samuel Jackson, 647 N.E.2d at 406 (upholding armed robbery conviction where defendant never displayed or used a weapon during commission of crime; holding that a jury could reasonably determine defendant was armed based on his "I'll blow you away" statement, coupled with his subsequent "opportunity to dispose of the gun before he was arrested"); see also Delgado, 326 N.E.2d at 719 (noting that no gesture is per se required to permit an armed robbery conviction to stand because a defendant's warning statement may be "informational" and "take the place of a threatening movement or gesture and complete the assault").
Although King heavily rests his no-gesture-no-weapon position upon the crutch of Howard's holding, Howard offers King little support because in that case, there was no room for any inference but that the defendant was not armed at the time of the robbery, as the defendant was apprehended at the scene of the crime with no weapon on his person. See 436 N.E.2d at 1212. Here, the established facts do not require such a finding, as there was a day lapse between the crime and King's arrest.
It is where indisputable evidence ends that the role of the fact finder truly begins; the question of whether King possessed a weapon at the time of the robbery was a question best left to the jury's jurisdiction. In light of governing Massachusetts law and the established record, we cannot say the MAC's determination that a rational juror could have inferred King was armed at the time of the robbery constituted an "unreasonable application" of Jackson. See DeBurgo, 587 F.3d at 69 ("[G]iven the sufficiently suggestive circumstantial evidence presented at trial, we are satisfied that the [state court's] analysis of the sufficiency of the evidence was not an unreasonable application of the Supreme Court's standard announced in Jackson."); see also Hurtado, 245 F.3d at 18-19 (noting that "[w]here it is a matter of what inferences may be drawn" by the jury, if "the argument over the correctness of the state court's ultimate conclusion is one of degree calling for a choice between credible (although mutually opposed) views, the habeas inquiry on objective unreasonableness ends").
2. Intimidation of a Witness
King also contests the MAC's determination that there was sufficient evidence to
a. State Law: How to Intimidate a Witness (and Not Get Away With It)
Under governing Massachusetts law at the time of the robbery,
Massachusetts courts applying the pre-2006 amendment version of the witness intimidation statute have recognized that its purpose is to "deter interference with future communication of information." Commonwealth v. Burt, 40 Mass.App.Ct. 275, 663 N.E.2d 271, 274 (1996) (quoting United States v. San Martin, 515 F.2d 317, 320 (5th Cir.1975) (internal quotation mark omitted)); see also Commonwealth v. McCreary, 45 Mass.App.Ct. 797, 702 N.E.2d 37, 39 (1998) (providing that the statute is intended "to protect witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings. The larger purpose is to prevent interference with the administration of justice"). Additionally, Massachusetts courts have noted that the legislature created "a somewhat lower threshold of purposeful activity" for what may suffice to constitute witness intimidation. Commonwealth v. Belle Isle, 44 Mass.App.Ct. 226, 694 N.E.2d 5, 8 (1998) (internal quotation mark omitted) (noting that the statute's use of the word "endeavor" signified the legislature's intent "to punish any wilful conduct that amounted to an effort to
Thus, pursuant to Massachusetts law, a juror assessing a defendant's alleged intimidation of a witness should consider the complete context of events—i.e., the potential purpose of the defendant's actions towards the witness, which may be assessed by evaluating the "place, time, and circumstances" surrounding the underlying acts, Commonwealth v. Robinson, 444 Mass. 102, 825 N.E.2d 1021, 1028-29 (2005) (quoting McCreary, 702 N.E.2d at 39) (internal quotation marks omitted)— bearing in mind that there is a "somewhat lower threshold" for what may rise to an intimidatory act, and further, that the statute's scope expands beyond the trial stage and includes a witness's future statements to police.
Having laid the applicable legal foundation, we now address the MAC's holding that a rational juror could have found King liable of witness intimidation to assess whether the evidence, reviewed drawing all inferences in the government's favor, was sufficient to support the jury's verdict. We hold that it was, and that the MAC's determination was not an unreasonable application of Jackson's sufficiency standard.
b. State Court Decision: Sufficiency of the Witness Intimidation Evidence
The MAC correctly articulated Massachusetts law on witness intimidation, stating that pursuant to the statute, "[a] fact finder may evaluate the circumstances in which the statement was made, including its timing, to determine whether the defendant in fact intended to intimidate the victim"; that "[a] criminal investigation need not have commenced" for the statute to be applicable; and that a victim need not "be furnishing information on the day that the intimidating action [was] taken or statement made" for the statute's provisions to be triggered. King, 866 N.E.2d at 944-45. The MAC noted that the determination of whether a statement constitutes a threat against a witness must be made by considering a statement's underlying "purpose of `deterring interference with future communication of information [by a witness].'" Id. at 945 (quoting Burt, 663 N.E.2d at 274). On reviewing and applying the governing law to the facts, and examining all evidence in a light most favorable to the government, the MAC held that a rational juror could "reasonably conclude from the surrounding circumstances that it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication." Id.
In its review of the record, the MAC carefully noted the following factual "surrounding circumstances:" King's specific statement that "[i]f he saw [the victim] on 22 News [a Springfield television program] he was going to come back and kill [him], [his] whole family, [his] buddy Ben, all of that," id. at 944; that King made the statement during the robbery; that King's statement followed his punching of the victim, placing him in a choke hold, knocking him to the floor, threatening to shoot him, and ordering him to explain how to open the register; and that prior to making the threat, King had tried to obtain access to the store's security surveillance videotapes, which the victim said he could not provide because the videotapes were kept in the manager's office
King challenges the MAC's decision with two arguments, both of which dwindle in the face of established precedent and fail to show an unreasonable decision on the part of the state court. First, King submits that the witness intimidation statute only applies to witnesses who are currently trying to communicate with the police or who have represented an intent, either in the past or present, to so communicate.
King relies on the MAC's previous decision in Belle Isle, in which the defendant impeded the attacked victim's wife from contacting authorities after she had expressed her intent to call the police. 694 N.E.2d 5. King contends that Belle Isle requires a showing of a targeted witness's present intent at the time of the defendant's threat to contact investigating authorities in order for the witness intimidation statute to be triggered.
Belle Isle is not the authoritative haven in which King should seek refuge; nowhere did the Belle Isle court require a showing of a witness's present intent to communicate with authorities for the witness intimidation statute to be applicable. See Belle Isle, 694 N.E.2d at 8 (simply holding that "[a] reasonable jury could have found that by following [the victim's wife] from the room when she stated she was going to call the police, and using force to sever the phone cord from the wall, [the defendant] forcefully interfered with [her] attempt to furnish information to the police"). Here, the MAC similarly considered and rejected King's reliance on Belle Isle, correctly stating that the decision "was not intended to suggest that an attempt to communicate to authorities must be underway in order for there to be a violation of G.L.c. 268, § 13B," King, 866 N.E.2d at 945, and accurately noting that it had rejected such a proposition previously in Burt, 663 N.E.2d at 274 (rejecting defendant's argument that because the attacked witness "was not furnishing information to the police on the day she allegedly was intimidated, the statute [was] not satisfied"). King, 866 N.E.2d at 945.
We agree with the MAC's well-reasoned explanation on this issue: King's proposed interpretation effectively shoehorns the witness intimidation statute's language into the narrow confines of a witness's
Turning to King's second argument, King contends that his threatening statement was limited to preventing the victim from reaching out to the news media; because he did not try to impede Jacques from talking to criminal investigators, the witness intimidation statute is inapplicable.
In brief, case law makes clear that a defendant's threat does not have to expressly reference the police or other form of criminal investigator in order to trigger the prohibitions of the witness intimidation statute. See Burt, 663 N.E.2d at 273 (finding that defendant's statements, in which he questioned the victim concerning her children and revealed personal details as to them, "were sufficient to constitute an `endeavor' to influence [the victim] by means of `threats' or `intimidation'"); McCreary, 702 N.E.2d at 39 ("[a]ssuming intimidation by the defendant . . . for which there was ample evidence," where defendant moved close to victim and threatened to kick the victim and/or his son in the head); see also Commonwealth v. Gordon, 44 Mass.App.Ct. 233, 694 N.E.2d 2, 4-5 (1998) (finding that evidence was sufficient to show intimidation of a juror where defendant stood close to juror and stated he recognized her, had been watching her, asked personal details concerning her life, and suggested she watch a movie that was extremely violent).
Reviewing the evidence and "surrounding circumstances" in the light most favorable to the prosecution, there was sufficient evidence for a rational juror to conclude that King's statement—made after he had assaulted, beaten, and threatened to shoot the victim, requested access to security tapes, and taken the victim's bicycle—was made with the intent to prevent the victim from future dissemination of information or evidence concerning the crime to relevant authorities. For these reasons, the MAC's decision does not constitute an unreasonable application of Jackson.
For the foregoing reasons, the MAC's decision in this case was not unreasonable under AEDPA. We thus affirm the district court's decision to deny King a writ of habeas corpus.
Subsequent courts comparing Delgado and Howard have noted a significant distinction between the facts of each case: although both cases concern a defendant who represented having a gun in his possession at the time of a crime, the defendant in Howard was arrested during the robbery, at which time police were able to confirm that the defendant was not in fact armed during the crime; in contrast, the defendant in Delgado had an opportunity between the robbery itself and the subsequent arrest to dispose of the alleged weapon. See Commonwealth v. Samuel Jackson, 419 Mass. 716, 647 N.E.2d 401, 406 (1995) (comparing and reconciling the Delgado and Howard holdings); see also Howard, 436 N.E.2d at 1212 (stating that, because there was no opportunity for the defendant to dispose of a weapon between the crime and the police's sudden arrival and arrest, there was an "absence of any basis to infer that the defendant may have had a gun[, which] distinguishes this case from [Delgado]").
Likewise here, defendant did not expressly prohibit the victim from contacting the police; instead, his various displays of force—including punching the victim, knocking him to the ground, putting him in a choke hold, demanding to see the surveillance tapes, taking the victim's only form of transportation (his bicycle) from the store—and his violent admonition against contacting the media served as telling circumstantial evidence, of which the MAC took careful note, suggesting that defendant intended to prevent the victim from reaching out to criminal investigators concerning the robbery. King, 866 N.E.2d at 944-45.
Belete similarly offers little support to King, as the case specifically addressed whether a witness's interpreter fell within the parameters of the witness intimidation statute; the state court held that such a party did not because "[i]nterpreters are not witnesses, nor do they normally possess any knowledge of a fact or occurrence sufficient to testify in a case." 640 N.E.2d at 512. The underlying issue in Belete is thus distinguishable from King's argument that a certain level of specificity or detail is required in an intimidating act to trigger the prohibitions of the statute.