Respondents Brief — Timothy Brown, Petitioner v. Massachusetts

No. 17-7732

In the

Supreme Court of the United States

_________________

TIMOTHY BROWN,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE MASSACHUSETTS

SUPREME JUDICIAL COURT

_______________

BRIEF IN OPPOSITION

_______________

MAURA HEALEY

Massachusetts Attorney General

June 13, 2018

MATTHEW P. LANDRY*

Assistant Attorney General

OFFICE OF THE MASSACHUSETTS

ATTORNEY GENERAL

One Ashburton Place

Boston, MA 02108

Matthew.Landry@state.ma.us

(617) 963-2677

*Counsel of Record

QUESTION PRESENTED

In Massachusetts, as in many other states, the common-law felony murder

doctrine has long provided that, where a killing occurs in the commission of a felony,

the intent to commit the felony alone suffices to establish the “malice” needed to

support a conviction for first-degree murder. In the decision below, the Supreme

Judicial Court of Massachusetts affirmed the constitutionality of that rule, but held

that, going forward, its common-law doctrine would be narrowed to exclude such socalled “constructive malice” convictions. The court determined that this change in the

common law would be applied only prospectively, and it therefore did not apply the

change to Petitioner.

The question presented is:

Whether, when a state court changes the doctrine defining a common-law

crime, the court may apply that change only prospectively, consistent with due

process.

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

STATEMENT ................................................................................................................. 1

ARGUMENT .................................................................................................................. 5

There is no important federal question on which the SJC’s decision is in

conflict with any decision of this Court or the lower state and federal courts. .... 5

A. No court has held that due process requires state courts to apply

changes in common-law doctrines retroactively, absent some other

constitutional issue..................................................................................... 6

B. The issue left open in Fiore v. White is not presented here. ................... 10

C. The decision below does not conflict with Teague v. Lane. ..................... 13

D. Petitioner’s alleged split of authority among state courts is illusory..... 14

CONCLUSION............................................................................................................. 20

ii

TABLE OF AUTHORITIES

Cases

Am. Trucking Ass’ns, Inc. v. Smith,

496 U.S. 167 (1990) ................................................................................................. 7

Bejanaro v. State,

146 P.3d 265 (Nev. 2006) .......................................................................... 16, 17, 19

Bouie v. South Carolina,

378 U.S. 347 (1964) ............................................................................................. 6, 8

Bradley v. United States,

410 U.S. 605 (1973) ............................................................................................... 13

Bunkley v. Florida,

538 U.S. 835 (2003) ......................................................................................... 12, 19

Clay v. Bowersox,

628 F.3d 996 (8th Cir. 2011) ................................................................................. 16

Clem v. State,

81 P.3d 521 (Nev. 2003) ........................................................................................ 15

Commonwealth v. Bray,

553 N.E.2d 538 (Mass. 1990) ................................................................................ 17

Commonwealth v. Colon-Cruz,

470 N.E.2d 116 (Mass. 1984) .................................................................................. 3

Commonwealth v. Dickerson,

364 N.E.2d 1052 (Mass. 1977) ................................................................................ 3

Commonwealth v. Matchett,

436 N.E.2d 400 (Mass. 1982) .................................................................................. 4

Commonwealth v. Paulding,

777 N.E.2d 135 (Mass. 2002) .................................................................................. 3

Commonwealth v. Sylvain,

995 N.E.2d 760 (Mass. 2013) ................................................................................ 16

Davis v. Burke,

179 U.S. 399 (1900) ............................................................................................... 13

iii

Dickerson v. Attorney Gen.,

488 N.E.2d 757 (Mass. 1996) .................................................................................. 3

Easterwood v. State,

44 P.3d 1209 (Kan. 2002) ...................................................................................... 15

Fiore v. White,

531 U.S. 225 (2001) ....................................................................................... passim

Gladney v. Pollard,

799 F.3d 889 (7th Cir. 2015) ................................................................................. 16

Great N. Ry. Co. v. Sunburst Oil & Ref. Co.,

287 U.S. 358 (1932) ................................................................................. 7, 9, 10, 15

Griffith v. Kentucky,

479 U.S. 314 (1987) ................................................................................................. 6

Harper v. Virginia Dep’t of Tax’n,

509 U.S. 86 (1993) ............................................................................................. 5, 10

Harrell v. State,

386 So.2d 390 (Miss. 1980).................................................................................... 15

Henry v. Ricks,

578 F.3d 134 (2nd Cir. 2009)................................................................................. 16

In re Martinez,

407 P.3d 1 (Cal. 2017) ............................................................................... 17, 18, 19

In re Winship,

397 U.S. 358, 364 (1970) ................................................................................... 6, 11

Jackson v. Virginia,

443 U.S. 307 (1979) ....................................................................................... 6, 8, 11

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) ................................................................................................. 6

La Rue v. McCarthy,

833 F.2d 140 (9th Cir. 1987) ................................................................................. 16

Luurtsema v. Comm’r of Correction,

12 A.3d 817 (Conn. 2011) ...................................................................................... 15

iv

Mackey v. United States,

401 U.S. 667 (1971) ................................................................................................. 7

McConnell v. State,

102 P.3d 606 (Nev. 2004) ...................................................................................... 16

McNulty v. California,

149 U.S. 645 (1893) ......................................................................................... 12, 13

Montgomery v. Louisiana,

136 S.Ct. 718 (2016) .................................................................................... 5, 13, 17

Nguyen v. State,

878 N.W.2d 744 (Iowa 2016) ................................................................................. 15

People v. Chiu,

325 P.3d 972 (Cal. 2014) ....................................................................................... 18

People v. Jean-Baptiste,

901 N.E.2d 192 (N.Y. 2008)............................................................................. 18, 19

Policano v. Herbert,

859 N.E.2d 484 (N.Y. 2006)................................................................................... 18

Rogers v. Tennessee,

532 U.S. 451 (2001) ................................................................................... 6, 8, 9, 14

Sanders v. Fair,

728 F.2d 557 (1st Cir. 1984) .................................................................................. 16

State v. Gates,

576 P.2d 1357 (Ariz. 1978) .................................................................................... 15

Teague v. Lane,

489 U.S. 288 (1989) ..................................................................................... 6, 13, 14

Wainwright v. Stone,

414 U.S. 21 (1973) ................................................................................................. 12

Statutes

Mass. Gen. Laws ch. 265, § 1 ........................................................................................ 3

Mass. Gen. Laws ch. 278, § 17 ...................................................................................... 2

v

Mass. Gen. Laws ch. 278, § 18C .................................................................................... 2

Mass. Gen. Laws ch. 278, § 33E .................................................................................... 2

Constitutional Provisions

U.S. Const., art. III ........................................................................................................ 6

vi

STATEMENT

1.

On the evening of October 23, 2009, Petitioner watched while two of his

friends robbed two women walking down a street in Lowell, Massachusetts.

Pet. App. A at 9. A larger group of men met later that evening in the kitchen of

Petitioner’s apartment, and there they discussed committing another robbery—this

time, against Hector and Tony Delgado, who allegedly owed one of the men money.

Pet. App. A at 9. Following this discussion, four members of the group (not including

Petitioner) decided to drive to the Delgado brothers’ townhouse and commit the

robbery. Pet. App. A at 9. Before the group left his apartment, Petitioner provided the

four men with hooded sweatshirts to conceal their identities, and Petitioner also gave

one of the men his .380 caliber pistol. Pet. App. A at 9-10.

Shortly after 1:00 A.M., occupants of the Delgados’ town house heard loud

banging on the door, and Tony called out from an upstairs window, “Who’s there?”

Pet. App. A at 10. A voice that sounded female responded either “Nicole” or “Nicki.”

Pet. App. A at 10. Tony went downstairs and opened the door, whereupon two of the

men chased him upstairs and shot both him and his brother Hector to death.

Pet. App. A at 10. After leaving, the men exchanged “high fives” and went back to

Petitioner’s apartment, where they returned Petitioner’s sweatshirts and his gun to

him. Pet. App. A at 10. Petitioner later admitted to the police that he gave his gun to

one of the men, knowing that it was to be used in the robbery based on the

conversations that had occurred in his apartment and based on the prior robbery of

the two women that he had witnessed earlier that evening. Pet. App. A at 10.

1

2.

Petitioner was convicted by a Massachusetts jury of two counts of

murder in the first degree, on a felony-murder theory, based on the predicate offenses

of attempted armed robbery and home invasion, 1 and was also convicted of unlawful

possession of a firearm and unlawful possession of ammunition. Pet. App. A at 8;

Pet. App. D at 11. Petitioner appealed his convictions to the Massachusetts Supreme

Judicial Court (“SJC”). Pet. App. A at 8; Pet. App. D at 11. In addition to several

claimed trial errors, Petitioner challenged the sufficiency of the evidence of his intent

to commit the predicate felonies that supported his felony-murder convictions.

Pet. App. A at 11-12. Petitioner also asked the SJC to abolish the common-law felonymurder doctrine in Massachusetts, arguing that it was “arbitrary and unjust” under

state constitutional principles. Pet. App. A at 16-17. Petitioner did not challenge the

felony-murder doctrine on federal constitutional grounds. Pet. App. A at 16-17.

The SJC rejected each of Petitioner’s arguments and affirmed his convictions.

Pet. App. A at 8-16. In particular, the SJC unanimously held that its felony-murder

doctrine is consistent with the Massachusetts Constitution. Nevertheless, it decided,

on its own initiative, to reduce Petitioner’s first-degree murder conviction to seconddegree murder, pursuant to the court’s statutory authority under Mass. Gen. Laws

ch. 278, § 33E. 2 Pet. App. A at 17. The court concluded that, in consideration of

1 Both armed robbery and armed home invasion are felonies punishable by

imprisonment for life in Massachusetts. See Mass. Gen. Laws ch. 278, §§ 17, 18C.

2 In first-degree murder cases, Mass. Gen. Laws ch. 278, § 33E authorizes the SJC

to “(a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt,”

if it concludes 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.” Section 33E refers to first-degree-murder cases and certain habitual2

Petitioner’s limited role in the underlying crimes, verdicts of first-degree murder were

not “consonant with justice” even though the evidence was sufficient to support those

convictions. Pet. App. A at 17. As explained below, a majority of the court also decided

to narrow the common-law felony-murder doctrine only prospectively.

3.

Until 1858, murder was entirely a common-law crime in Massachusetts.

In that year, “largely to mitigate the harshness of the common law rule imposing a

mandatory death penalty on all murderers,” Commonwealth v. Paulding, 777 N.E.2d

135, 141 (Mass. 2002) (quoting Commonwealth v. Dickerson, 364 N.E.2d 1052,

1061 n.5 (Mass. 1977) (Quirico, J., concurring)), the Massachusetts Legislature

enacted a statute dividing the crime of murder into first- and second-degree murder.

See Mass. Gen. Laws ch. 265, § 1. 3 However, “[t]he statute did not define ‘murder’

and did not declare that a person is guilty of murder whenever a death occurs during

offender cases as “capital cases.” “However, since capital punishment is not a penalty

currently recognized by the laws of the Commonwealth, these persons actually are

not ‘capital’ defendants within the ordinary meaning of the term.” Dickerson v.

Attorney Gen., 488 N.E.2d 757, 758 n.1 (Mass. 1996); see also Commonwealth v.

Colon-Cruz, 470 N.E.2d 116 (Mass. 1984) (holding that death-penalty statutes do not

comport with state constitution).

3 The Massachusetts murder statute, Mass. Gen. Laws ch. 265, § 1, provides as

follows:

Murder committed with deliberately premeditated

malice aforethought, or with extreme atrocity or cruelty, or

in the commission or attempted commission of a crime

punishable with death or imprisonment for life, is murder

in the first degree. Murder which does not appear to be in

the first degree is murder in the second degree. Petit

treason shall be prosecuted and punished as murder. The

degree of murder shall be found by the jury.

3

the commission of a felony; the elements of murder liability continued to rest in the

domain of the common law.” Pet. App. A at 19 (Gants, C.J., concurring).

Specifically, and crucially to this case, “felony-murder is a common-law crime”

in Massachusetts. Pet. App. A at 16. Its elements are not—and never have been—set

forth in any statute. As it existed at the time of Petitioner’s offense, up through the

date of the decision below, the common-law felony-murder doctrine “impose[d]

criminal liability ‘on all participants in a certain common criminal enterprise if a

death occurred in the course of that enterprise.’” Pet. App. A at 16 (quoting

Commonwealth v. Matchett, 436 N.E.2d 400, 407 (Mass. 1982)). “The effect of the

felony-murder rule, both for principals and accomplices, [was] to substitute the intent

to commit the underlying felony for the malice aforethought required for murder.”

Pet. App. A at 16 (citations and quotation marks omitted).

As mentioned above, when the SJC affirmed Petitioner’s convictions, the court

also unanimously rejected his argument that the felony-murder doctrine is

unconstitutional. Pet. App. A at 16. Nevertheless, in a separate concurring opinion

written by Chief Justice Ralph D. Gants, and joined by three other Justices—thus

constituting a majority of the seven-member court—the SJC decided to impose a

narrower scope of felony-murder liability for future trials. Pet. App. A at 17-23. The

court, through Chief Justice Gants’s concurring opinion, held that for future cases, “a

conviction of felony-murder will require a finding of actual malice, not merely

constructive malice. As a result, felony-murder will no longer be an independent

theory of liability for murder.” Pet. App. A at 18. The court reframed felony-murder

4

as “an aggravating element of murder, permitting a jury to find a defendant guilty of

murder in the first degree where the murder was neither premeditated nor committed

with extreme atrocity or cruelty but was committed in the course of a felony

punishable by life imprisonment.” Pet. App. A at 18. The court then held that “[t]he

abolition of felony-murder liability from our common law of murder is prospective,

applying only to cases where trial begins after our adoption of the change. It will have

no effect on felony-murder cases already tried, including this [Petitioner’s] case.”

Pet. App. A at 22. Chief Justice Gants explained that the court was not casting doubt

upon any of the prior felony-murder convictions reached under the former doctrine,

including Petitioner’s convictions. Pet. App. A at 18. In fact, he explicitly recognized

that “under our existing common law of felony-murder, the jury reached the correct

verdicts” in Petitioner’s case. Pet. App. A at 18. “Indeed, . . . guilty verdicts of murder

in the first degree on the theory of felony-murder are the only verdicts [the jury]

reasonably could have reached on this evidence.” Pet. App. A at 18.

ARGUMENT

There is no important federal question on which the SJC’s decision is in

conflict with any decision of this Court or the lower state and federal

courts.

It is worth stating at the outset what this case is not about. This case presents

none of the difficult issues that this Court has faced in other cases involving

retroactivity. Specifically, it presents no question regarding whether a federal

constitutional rule must be applied retroactively. See, e.g., Montgomery v. Louisiana,

136 S.Ct. 718, 728 (2016); Harper v. Virginia Dep’t of Tax’n, 509 U.S. 86, 96-97 (1993);

5

Griffith v. Kentucky, 479 U.S. 314, 322 (1987); Teague v. Lane, 489 U.S. 288, 310-11

(1989) (plurality opinion of O’Connor, J.). Nor does it present any concern that a

defendant might not have had fair warning that his conduct was criminal, see, e.g.,

Rogers v. Tennessee, 532 U.S. 451, 461 (2001); Bouie v. South Carolina, 378 U.S. 347,

354 (1964), or that a defendant might have been convicted without proof of all the

essential elements of a crime, see, e.g., Fiore v. White, 531 U.S. 225, 228-29 (2001);

Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970).

And, as this case arises from a state court, it of course presents no concern that a

failure to apply a rule retroactively might violate Article III. See, e.g., James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 547 (1991) (Blackmun, J., concurring in the

judgment); id. at 548-49 (Scalia, J., concurring in the judgment). The only question

presented here is whether, absent any of those concerns, the Due Process Clause of

the Fourteenth Amendment nonetheless requires a state to apply a change in its

common law retroactively. This Court answered that question “no” over eighty years

ago, and Petitioner identifies neither a split of authority on the continuing force of

that decision, nor any other compelling reason to revisit it. The petition should

therefore be denied.

A.

No court has held that due process requires state courts to

apply changes in common-law doctrines retroactively, absent

some other constitutional issue.

This case is controlled by a basic and venerable principle, as to which

Petitioner identifies no split of authority. As this Court has explained, as a general

rule, “the federal constitution has no voice upon the subject” of whether, or when, a

6

state court must retroactively apply changes to its own laws. Great N. Ry. Co. v.

Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932) (Cardozo, J.); see also Am. Trucking

Ass’ns, Inc. v. Smith, 496 U.S. 167, 177 (1990) (“When questions of state law are at

issue, state courts generally have the authority to determine the retroactivity of their

own decisions.”) (citing Sunburst Oil) (plurality opinion of O’Connor, J.). Thus, this

Court has affirmed that a state is not required to apply a more lenient state commonlaw rule retroactively. Sunburst Oil, 287 U.S. at 365 (“The common law as

administered by [a state’s] judges ascribes to the decisions of her highest court a

power to bind and loose that is unextinguished, for intermediate transactions, by a

decision overruling them.”). As the second Justice Harlan has explained, Sunburst

Oil “holds that the Federal Constitution imposes no barrier to a state court’s decision

to apply a new state common law rule prospectively only.” Mackey v. United States,

401 U.S. 667, 698 (1971) (separate opinion of Harlan, J.).

The SJC made just such a decision in this case: it chose to revise

Massachusetts’ common-law felony-murder rule, prospectively only. Pet. App. A at

18. Petitioner has identified no decision of this Court or any other, state or federal,

calling into question the basic principle that a state court may do so. See Sunburst

Oil, 287 U.S. at 364; see also Am. Trucking, 496 U.S. at 177 (plurality opinion); Pet.

30-40. For this reason alone, the petition should be denied.

Moreover, this case implicates none of the special circumstances in which this

Court has expressed concern with a state’s retroactivity decision. Those

circumstances arise when the decision risks infringing upon some other asserted

7

federal constitutional right. For example, a state’s retroactive application of a harsher

common-law rule may deprive a defendant of his due process right to fair warning of

what conduct the state’s law actually criminalized. See Rogers, 532 U.S. at 462-67

(considering but rejecting a due process challenge to a state court’s decision to

retroactively apply its abrogation of the common-law year-and-a-day rule in murder

cases) (citing, inter alia, Bouie, 532 U.S. at 359-60). 4 A second example is a state’s

refusal to retroactively apply a newly-announced interpretation of a criminal

statute—an interpretation which the state court said correctly reflected the law as it

stood at the time of the defendant’s conduct—which may deprive the defendant of his

due process right to be convicted only upon proof of each element of the crime. See

Fiore, 531 U.S. at 835 (granting habeas corpus relief where state court’s subsequent

interpretation of criminal statute meant petitioner’s conduct was now understood not

to have violated the statute when committed, and thus his conviction violated due

process under Jackson, 443 U.S. at 307).

None of those special circumstances is present in this case. Here, the SJC

unanimously affirmed that the common law of felony-murder under which Petitioner

was convicted (a) was constitutional, and (b) was the rule in effect at the time of his

4 While the Court was closely divided in the outcome of Rogers, all the Justices

agreed that the key question was whether the state court’s retroactive abolition of

the common-law “year and a day rule” in murder cases “offended the due process

principle of fair warning articulated in Bouie and its progeny.” 532 U.S. at 466; see

also id. at 469-71, 478-80 (Scalia, J., dissenting) (arguing that the defendant did not

have fair warning); id. at 482 (Breyer, J., dissenting) (same); see also Bouie, 378 U.S.

at 347 (“a deprivation of the right of fair warning can result not only from vague

statutory language but also from an unforeseeable and retroactive judicial expansion

of narrow and precise statutory language”).

8

offense. Pet. App. A at 11-12, 16-17. Petitioner thus had fair warning that his conduct

could render him guilty of first-degree murder, and there is no danger that he was

convicted without proof of all elements of the offense as set forth in the law as it

existed at that time. 5 And, absent any of those special circumstances, each State is

free to choose “for itself between the principle of forward operation and that of

relation backward,” and may make that choice based on “the juristic philosophy of

the judges of her courts, their conceptions of law, its origin and nature.” Sunburst Oil,

287 U.S. at 365. “[W]hether the subject of the new decision is common law or statute,”

the result is the same. Id. (citation omitted).

In sum, there is no important federal question presented where a state court

affirms the validity of a longstanding common-law doctrine but nonetheless

recognizes a changed rule for future cases. In fact, this Court has said that commonlaw courts should have “substantial leeway” in this area, “as they engage in the daily

task of formulating and passing upon criminal defenses and interpreting such

doctrines as causation and intent, reevaluating and refining them as may be

necessary to bring the common law into conformity with logic and common sense.”

Rogers, 532 U.S. at 461. That is exactly what happened here: in light of the SJC’s

“experience with the common law of felony-murder liability,” Pet. App. A at 23, its

5 Petitioner himself effectively acknowledges this defect in his position by stating,

accurately, that “petitioner has been convicted of murder based on a level of intent

that is no longer sufficient to convict an individual in Massachusetts of murder.” Pet.

for cert. at 31 (emphasis added). But Petitioner does not—and could not—allege that

the intent proven in his case was insufficient to sustain a first-degree felony murder

conviction at the time of his offense.

9

affirmation of the old rule was accompanied by an announcement—or, as Justice

Cardozo put it in Sunburst Oil, a “prophecy”—that, while there was nothing

unconstitutional about past felony-murder convictions, future cases should be

governed by a different, narrower rule. 287 U.S. at 365-66 (recognizing that when a

state court prospectively applies a decision of state law, the earlier decision “has not

been overruled at all. It has been translated into a judgment of affirmance and

recognized as law anew. Accompanying the recognition is a prophecy, which may or

may not be realized in conduct, that transactions arising in the future will be

governed by a different rule.”). When state common-law courts make these decisions,

this Court has found itself “not at liberty, for anything contained in the Constitution

of the United States, to thrust upon those courts a different conception either of the

binding force of precedent or of the meaning of the judicial process.” Id. at 366; see

also, e.g., Harper, 509 U.S. at 100 (noting the “freedom state courts may enjoy to limit

the retroactive operation of their own interpretations of state law”) (citing Sunburst

Oil, 287 U.S. at 364-66). Because no important federal question or split of authority

is presented for this Court to resolve, the petition should be denied.

B.

The issue left open in Fiore v. White is not presented here.

Petitioner cites Fiore, 531 U.S. at 225, as a case in which this Court previously

expressed interest in answering the question he claims is presented in this case. Pet.

36-37. But the question left open in Fiore is not presented here. In Fiore, this Court

granted certiorari to answer the question of “when, or whether, the Federal Due

Process Clause requires a State to apply a new interpretation of a state criminal

10

statute retroactively to cases on collateral review.” 531 U.S. at 226. 6 The Court

ultimately did not reach that question because, in response to a certified question

from this Court, see id. at 228, the Pennsylvania Supreme Court clarified that its

interpretation of the criminal statute under which Fiore was convicted represented a

“correct statement of the law when Fiore’s conviction became final.” Id. at 226. Thus,

this Court was left to answer the much simpler question of “whether Pennsylvania

can, consistently with the Federal Due Process Clause, convict Fiore for conduct that

its criminal statute, as properly interpreted, does not prohibit.” Id. at 228. It

answered that question in the negative because “the Due Process Clause of the

Fourteenth Amendment forbids a State to convict a person of a crime without proving

the elements of that crime beyond a reasonable doubt.” Id. at 228-29 (citing Jackson,

443 U.S. at 316, and Winship, 397 U.S. at 364). Because, according to the

Pennsylvania Supreme Court, the elements of the crime at the time of Fiore’s conduct

required proof of an element that the State conceded had not been proven, Fiore’s

6 Specifically, the questions on which this Court granted certiorari in Fiore were

“[w]hether a state can flaunt [sic] the Due Process Clause of the Fourteenth

Amendment and evade federal habeas corpus relief for an incontestably innocent

prisoner by claiming that an appellate decision constitutes ‘new law,’ when in fact the

state did not and could not prove a key element of the crime at trial,” and “[w]hether

federal habeas relief should be extended to protect federal constitutional rights when

a state refuses to retroactively apply a case which based its decision on the already

existing clear language of the statute.” Fiore v. White, No. 98-842, 1998 WL 34080886,

pet. for cert. at i (Dec. 9, 1998) (emphasis added); see Fiore v. White, 526 U.S. 1038

(1999) (mem.) (granting certiorari on those two questions only). As explained in the

text, this case concerns neither a failure to prove an element of the crime, nor the

language of a statute. Fiore also urged in his petition for certiorari that the

application to him and his co-defendant of different interpretations of the same

criminal statute violated the Fourteenth Amendment’s Equal Protection Clause, but

this Court denied certiorari on that issue. See Fiore, 526 U.S. at 1038 (mem.); Fiore,

1998 WL 34080886, pet. for cert. at i.

11

conviction could not stand. Left unanswered was the question on which this Court

had originally granted certiorari, namely, “when, or whether, the Federal Due

Process Clause requires a State to apply a new interpretation of a state criminal

statute retroactively.” Id. at 226 (emphasis added); cf. Bunkley v. Florida, 538 U.S.

835, 840-41 (2003).

Because this case does not concern the “interpretation of a state criminal

statute,” it does not present the question left open in Fiore. A state court’s decision

prospectively changing a common law doctrine is materially different than a decision

announcing that a statute—whose words have not changed—shall henceforth have a

different meaning from what was previously understood. 7 Felony-murder, as

explained supra Part I-A, is a common-law crime in Massachusetts, “and th[e

Massachusetts Supreme Judicial C]ourt is responsible for the content of that common

law.” Pet. App. A at 23. Thus, the SJC’s decision to change a common-law doctrine for

future cases does not entitle Petitioner to the benefit of that different doctrine—much

as a state legislature’s amendment of a statute does not entitle a defendant

prosecuted under the old, harsher statute to the benefit of the amended version. See

McNulty v. California, 149 U.S. 645, 648 (1893) (“In our judgment the decision of the

supreme court of California, that [defendant] should be punished under the law as it

existed at the time of the commission of the crime of which he was convicted, involved

7 Even still, this Court has previously held, in another case involving a State’s

interpretation of its criminal statute, that due process was not offended when the

State declined to apply its new interpretation of that statute retroactively.

Wainwright v. Stone, 414 U.S. 21, 23-24 (1973) (per curiam).

12

no federal question whatever.”); Davis v. Burke, 179 U.S. 399, 404 (1900) (“The

question whether appellant shall be executed … as the law stood at the time of his

trial and conviction [although the legislature later amended it] … involves no

question of due process of law under the 14th Amendment.”) (citing McNulty);

cf. Bradley v. United States, 410 U.S. 605 (1973) (holding defendants ineligible for

more favorable treatment under amended version of federal statute enacted during

their trial).

Petitioner was properly punished according to the law that was in effect at the

time he committed the offense. Here, unlike in Fiore, the SJC held that Petitioner’s

conduct constituted the crime of felony-murder under the law as it then stood. Pet.

App. A at 11-12. Thus, contrary to Petitioner’s suggestion, the SJC’s prospective

change to its common-law felony-murder doctrine affords no opportunity to address

the question left open in Fiore, which concerned the retroactivity of new judicial

interpretations of criminal statutes.

C.

The decision below does not conflict with Teague v. Lane.

Petitioner presents this case as in conflict with the retroactivity principles

outlined by this Court in Teague, 489 U.S. at 288, and its progeny. Pet. 32-36.

However, Teague has no application here. Teague distinguishes those federal

constitutional “new rules” that apply retroactively on federal collateral review from

those that do not. See id. at 310-11 (plurality opinion of O’Connor, J.); see also, e.g.,

Montgomery, 136 S.Ct. at 728 (summarizing the Teague framework). But the SJC’s

change in the doctrine of felony-murder liability is not a “new rule” at all, as Teague

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uses that term. A “new rule” under Teague, whether “substantive” or “procedural,” is

a judicial interpretation of federal constitutional or statutory text that “was not

dictated by precedent existing at the time the defendant’s conviction became final.”

Teague, 489 U.S. at 301 (plurality opinion of O’Connor, J.) (emphasis in original). But

Petitioner does not, and could not, argue that the SJC’s decision to narrow the felonymurder doctrine was based in any respect on federal constitutional or statutory law;

to the contrary, that decision was explicitly based on the SJC’s “responsib[ility] for

the content of [Massachusetts] common law.” Pet. App. A at 23. Teague simply has

nothing to say about such adjustments to state common law doctrines. In any event,

by changing the common-law doctrine of felony murder only prospectively, the SJC

did not narrow the scope of the doctrine that existed when Petitioner committed his

offense, nor did its decision place his conduct beyond the State’s ability to punish. In

sum, the petition presents no federal question at all regarding Teague, let alone one

on which there exists a conflict with a decision of this Court, or among other state or

federal courts.

D.

Petitioner’s alleged split of authority among state courts is

illusory.

For similar reasons, Petitioner’s claim that the SJC’s decision is in conflict with

other decisions of state courts of last resort lacks merit. As this Court has recognized,

each state has “substantial leeway” to decide when, or whether, to apply changes to

its own state laws retroactively. Rogers, 532 U.S. at 461. Thus, there is no split

created when states decide that question differently. Instead, any difference among

them on this question merely reflects a legitimate diversity of judicial philosophies—

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a subject upon which this Court has said “the federal constitution has no voice.”

Sunburst Oil, 287 U.S. at 364; see also id. at 365 (recognizing that each state may

generally decide such questions of state law in accordance with “the juristic

philosophy of the judges of her courts, their conceptions of law, its origin and

nature.”).

Accordingly, several state courts have taken various approaches in deciding

whether changes in their laws should be applied retroactively—most citing Sunburst

Oil in recognition of the fact that their doing so presents no federal question. See, e.g.,

Nguyen v. State, 878 N.W.2d 744, 757-58 (Iowa 2016) (“The Supreme Court has

clearly stated that . . . it does not violate the Federal Constitution for states to choose

to apply the holding of a case prospectively rather than retroactively.”); Luurtsema v.

Comm’r of Correction, 12 A.3d 817, 827 (Conn. 2011); Clem v. State, 81 P.3d 521, 529

(Nev. 2003) (“[state] court is not required to make retroactive its new rules of state

law that do not implicate constitutional rights”); Easterwood v. State, 44 P.3d 1209,

1223-24 (Kan. 2002) (declining to apply retroactively a new interpretation of the

state’s felony murder statute on state collateral review); Harrell v. State,

386 So.2d 390, 391-92 (Miss. 1980) (“[T]he United States Supreme Court has clearly

rejected any all-inclusive principle of retroactivity for court decisions declarative of a

change in the law.”); State v. Gates, 576 P.2d 1357, 1360 (Ariz. 1978) (“a state court

may make the choice for itself between prospective or retrospective application of its

decisions”). And, in the rare cases when the federal courts of appeals have addressed

this question, they have reached the same conclusion. See Gladney v. Pollard, 799

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F.3d 889, 897-98 (7th Cir. 2015) (“States are free to choose whether a change in state

law is retroactive without running afoul of the federal Constitution”); Clay v.

Bowersox, 628 F.3d 996, 998 (8th Cir. 2011) (quoting Sunburst Oil); Henry v. Ricks,

578 F.3d 134, 140 (2nd Cir. 2009) (same); La Rue v. McCarthy, 833 F.2d 140, 142-43

(9th Cir. 1987) (same); Sanders v. Fair, 728 F.2d 557, 559 (1st Cir. 1984) (Breyer, J.)

(quoting Sunburst Oil and recognizing, in a habeas corpus case, that the

Massachusetts SJC often creates new common-law rules with only prospective effect,

and that “[a]ny disagreement with this approach strikes us as conceptual and

philosophical, not legal”).

The three state cases Petitioner cites as creating a “conflict” with the SJC’s

decision do no such thing. In Bejanaro v. State, 146 P.3d 265 (Nev. 2006), the Nevada

Supreme Court retroactively applied a rule on collateral review that—unlike the rule

at issue here—actually was a substantive rule of federal constitutional law. The

source of the new rule was a Nevada case decided after Bejanaro’s conviction became

final, in which the state court held that it was “impermissible under the United States

and Nevada Constitutions to base an aggravating circumstance in a capital

prosecution on the felony upon which a felony murder is predicated.” Id. at 272

(quoting McConnell v. State, 102 P.3d 606, 624 (Nev. 2004)). The court retroactively

applied the McConnell rule to the defendant’s case on collateral review, 8 because

8 In doing so, the Nevada court first found that the McConnell rule was both “new”

and “substantive,” based on that state’s analogue to the Teague framework. See 146

P.3d at 272, 274. Massachusetts also has its own Teague-like framework for cases

where the court needs to decide whether a new rule should be applied retroactively.

See Commonwealth v. Sylvain, 995 N.E.2d 760 (Mass. 2013) (citing Commonwealth

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Bejanaro had been convicted and sentenced to death under circumstances which the

McConnell court had recognized to be unconstitutional. See id. at 274-75 (“We

conclude that under the constitutional precepts set forth in McConnell, the statutes

in 1988 [when Bejanaro’s conviction became final] failed to genuinely narrow death

eligibility when the same felony served as a basis for both a felony-murder conviction

and a felony aggravator.”). Retroactive application of that substantive rule was

required in Bejanaro, because if McConnell recognized that using aggravating factors

like those used in the defendant’s trial was unconstitutional, the defendant’s

punishment based on those factors must therefore have been constitutionally beyond

the state’s ability to impose. See Montgomery, 136 S.Ct. at 729 (“[W]hen a new

substantive rule of [federal] constitutional law controls the outcome of a case, the

Constitution requires state collateral review courts to give retroactive effect to that

rule.”).

Similarly, the California Supreme Court held, in In re Martinez, 407 P.3d 1

(Cal. 2017), that a new decision overturning its prior interpretation of the state’s

murder statute announced a new substantive rule—and, therefore, retroactively

applied that new rule to the defendant’s case on collateral review. But here again, the

nature of the “new rule” retroactively applied by the California court differed

markedly from the SJC’s action here. Martinez had been convicted of first-degree

v. Bray, 553 N.E.2d 538 (Mass. 1990)). Of course, the SJC did not employ that

framework in this case, because, as discussed above, its decision did not reflect a new

understanding of the rule that existed at the time the offense was committed.

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murder under a “natural and probable consequences” theory of murder liability,

which the California Supreme Court later held to be a “legally incorrect”

interpretation of the state’s murder statute. People v. Chiu, 325 P.3d 972, 980 (Cal.

2014). Because Martinez was convicted under a theory that was now understood to

have been invalid even at the time of his conduct, he received the retroactive benefit

of the Chiu decision. Martinez, 407 P.3d at 3-7. Moreover, Martinez expressly held

that its decision to apply Chiu retroactively on collateral review was a matter of

California, not federal, law. See id. at 7 (“[T]he state law framework discussed above

sufficiently addresses such finality concerns and properly balances those concerns

with the need to correct serious constitutional error on collateral review. We decline

to adopt the federal standard.”).

In the third case Petitioner cites, People v. Jean-Baptiste, 901 N.E.2d 192 (N.Y.

2008), the New York Court of Appeals was asked to decide whether a recent decision

interpreting its murder statute should be applied to the defendant’s case on direct

review. 9 Relying on state retroactivity cases, the court held that it should, id. at 19495, and reduced the defendant’s conviction to manslaughter accordingly, id. at 193.

Critically different from this case, however, is the fact that the new rule retroactively

applied in Jean-Baptiste had overturned the court’s prior interpretation of the New

York murder statute, under which the defendant had been convicted. See id. at 194.

In light of its new interpretation of that statute, the court could no longer say that

9 The court had previously declined to apply its new interpretation retroactively

to cases on collateral review. See Policano v. Herbert, 859 N.E.2d 484, 495 (N.Y. 2006).

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the defendant had been convicted upon proof of each element of the crime as those

elements existed (as now properly interpreted) at the time of the defendant’s

offense—that is, refusing to apply the new rule retroactively “would result in a

person’s guilt even though one of the elements of the crime had not been established,

. . . [and] would have rendered the proceeding fundamentally unfair and a violation

of due process.” Id. at 194-95 (citations omitted).

These cases create no split of authority with the SJC’s decision below.

Bejanaro, Martinez, and Jean-Baptiste are each cases where the state court

recognized that its new understanding of constitutional and/or statutory text

rendered the defendant’s past conviction invalid, or beyond the state’s ability to

punish, because they represented a new understanding of what the law was at the

time of the offense. Cf. Bunkley, 538 U.S. at 835 (remanding for determination of what

the state of the law was when defendant committed the offense). That is not the case

here, where the SJC unanimously affirmed its past understanding of its prior felonymurder rule, but nonetheless decided to change it for future prosecutions. Pet. App.

A at 11-12 (unanimously holding that evidence was sufficient to convict Petitioner of

first-degree murder under existing doctrine); id. at 21-22 (Gants, C.J., concurring)

(narrowing felony-murder doctrine for “cases where trial begins after our adoption of

the change”). Moreover, both Martinez and Jean-Baptiste expressly rested their

decisions on state retroactivity principles, and Bejanaro—unlike this case—involves

a substantive rule of federal constitutional law. Petitioner thus has failed to identify

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a single decision of any state or federal court applying the rule he advocates in

circumstances resembling those of the decision below.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully Submitted,

MAURA HEALEY

Massachusetts Attorney General

_______________________________________

MATTHEW P. LANDRY*

Assistant Attorney General

OFFICE OF THE MASSACHUSETTS

ATTORNEY GENERAL

One Ashburton Place

Boston, MA 02108

Matthew.Landry@state.ma.us

(617) 963-2677

*Counsel of Record

June 13, 2018

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