Respondents Brief — James Anthony Martin, Petitioner v. Massachusetts

No. 20-6050

In the

Supreme Court of the United States

_________________

JAMES ANTHONY MARTIN,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MASSACHUSETTS SUPREME JUDICIAL COURT

_______________

BRIEF IN OPPOSITION

_______________

MAURA HEALEY

Attorney General for the Commonwealth

of Massachusetts

TARA L. JOHNSTON*

ANNA E. LUMELSKY

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

tara.johnston@mass.gov

(617) 963-2677

*Counsel of Record

QUESTION PRESENTED

Prior to 2017, the common law felony-murder doctrine of Massachusetts—like

that of many other states—had provided that, where a killing occurs in the

commission of a felony, the intent to commit the felony alone sufficed to establish the

“malice” needed to support a conviction for first-degree murder. In Commonwealth

v. Brown, 81 N.E.3d 1173 (Mass. 2017), cert. denied, 139 S. Ct. 54 (2018), the Supreme

Judicial Court of Massachusetts changed that rule going forward, narrowing its

common law doctrine to exclude such so-called “constructive malice” convictions.

Brown also held that the change in law announced in that case would apply only to

cases where the trial commenced after the date of the decision. Id. at 1178-79. In

the decision below, the court held that Brown’s common law felony-murder rule did

not apply to petitioner because petitioner’s trial had occurred before Brown was

decided.

The question presented is:

Whether, when a state court changes the definition of a common law crime,

thereby narrowing criminal liability, the court may apply that change purely

prospectively, consistent with due process.

i

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS ................................................................................................ ii

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

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

REASONS TO DENY THE WRIT ................................................................................ 5

I.

There is no split in authority on the question presented. ........................ 5

II.

This case is a poor vehicle for deciding the question presented. ........... 11

III.

The decision below is correct. .................................................................. 12

A. The SJC’s decision is consistent with the decisions of this Court .......... 13

B. The SJC’s decision is consistent with principles of federalism. ............. 18

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

ii

TABLE OF AUTHORITIES

Cases

Babb v. Lozowsky,

719 F.3d 1019 (9th Cir. 2013) ........................................................................ 10, 11

Bousley v. United States,

523 U.S. 614 (1998) ................................................................................................ 7

Bradley v. United States,

410 U.S. 605 (1973) .............................................................................................. 16

Brown v. Massachusetts,

139 S. Ct. 54 (2018). ............................................................................................... 3

Bunkley v. Florida,

538 U.S. 835 (2003) ...................................................................................... passim

Bunkley v. State,

882 So. 2d 890 (Fla. 2004) .................................................................................... 15

Camreta v. Greene,

563 U.S. 692 (2011) ................................................................................................ 9

Commonwealth v. Brown,

81 N.E.3d 1173 (Mass. 2017) ....................................................................... passim

Commonwealth v. Chhim,

851 N.E.2d 422 (Mass. 2006). .............................................................................. 12

Commonwealth v. Hanright,

994 N.E.2d 363 (Mass. 2013) ................................................................................. 3

Commonwealth v. Martin,

144 N.E.3d 254 (Mass. 2020) ................................................................................. 2

Commonwealth v. Scarpone,

634 A.2d 1109 (Pa. 1993) ..................................................................................... 13

Commonwealth v. Szlachta,

971 N.E.2d 1281 (Mass. 2012) ............................................................................. 12

Davis v. Burke,

179 U.S. 399 (1900) .............................................................................................. 16

iii

Fernandez v. Smith,

558 F. Supp. 2d 480 (S.D.N.Y. 2008). ................................................................ 6, 9

Fiore v. White,

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

Fleet Natl. Bank v. Commissioner of Rev.,

862 N.E.2d 22 (Mass. 2007) ................................................................................... 7

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

287 U.S. 358 (1932) .................................................................................... 6, 13, 18

Griffith v. Kentucky,

479 U.S. 314 (1987) .............................................................................. 4, 10, 11, 18

Guzman v. Greene,

425 F. Supp. 2d 298 (E.D.N.Y. 2006) ..................................................................... 9

Hanlon v. Rollins,

190 N.E. 606 (Mass. 1934) ..................................................................................... 7

L.B. v. State,

700 So. 2d 370 (Fla. 1997). ............................................................................. 14, 17

Mackey v. United States,

401 U.S. 667 (1971) .......................................................................................... 6, 13

Mason v. Duckworth,

74 F.3d 815 (7th Cir. 1996). ................................................................................. 11

McNulty v. California,

149 U.S. 645 (1893) ........................................................................................ 15, 16

Moore v. Helling,

763 F.3d 1011 (9th Cir. 2014) ...................................................................... passim

Moore v. State,

27 P.3d 447 (Nev. 2001). ........................................................................................ 9

Nika v. State,

198 P.3d 839 (Nev. 2008) ............................................................................. passim

Northwest Airlines, Inc. v. Transport Workers Union of Am.,

451 U.S. 77 (1981) ................................................................................................ 19

iv

Riley v. McDaniel,

786 F.3d 719 (9th Cir. 2015) ................................................................................ 10

Rivers v. Roadway Exp., Inc.,

511 U.S. 298 (1994) ............................................................................................ 7, 9

Rogers v. Tennessee,

532 U.S. 451 (2001). ..................................................................................... 7, 8, 20

Wainwright v. Stone,

414 U.S. 21 (1973) .................................................................................................. 6

Walker v. Graham,

955 F. Supp. 2d 92 (E.D.N.Y. 2013) ....................................................................... 9

Statutes

28 U.S.C. § 2254 ............................................................................................................. 9

v

STATEMENT

1. On September 9, 1976, Edward Paulsen (“Edward”) and his younger brother

Richard Paulsen (“Richard”) were attempting to purchase drugs from Gordon Kent

Brown at Brown’s apartment. Pet. App. 4a. Richard had made prior purchases of

marijuana and hashish from Brown, and on this occasion, he had arranged a purchase

of one kilogram of hashish in exchange for $1,600. Id.

When Edward and Richard arrived at Brown’s apartment, Brown seemed

agitated. Id. He told the brothers that he was going to buy beer and would be right

back. Id. Brown’s behavior made Edward and Richard uncomfortable, and they left

and returned to the apartment twice.

Id.

One of the times that they left the

apartment, they passed two people, later identified as James Anthony Martin

(“Martin” or “petitioner”) and Meredith Weiss, who was Martin’s girlfriend, walking

up the stairs. Id. When Edward and Richard returned to the apartment the second

time, Brown, who still seemed nervous, brought them into a bedroom and left them

alone there, saying that he had to speak with his landlord. Id. Martin then entered

the bedroom from an adjoining room. Id. He pointed a gun at the brothers and asked

where the money was. Id. Edward raised his hands in the air, palms wide open, and

said “wait a minute.” Pet. App. 4a-5a. From a distance of about five feet, Martin shot

Edward in the chest. Pet. App. 5a. Martin again asked where the money was, and

Richard said that it was in their car. Id. Martin searched the victim’s pockets and

left. Id. Richard went out the window onto the porch, jumped to the ground, and

screamed for help. Id. Bystanders came into the apartment with Richard and

performed cardiopulmonary resuscitation on Edward. Id. Edward died later that

night of a single gunshot wound to the chest. Id.

Weiss was waiting in a car outside, and drove Brown and Martin away. Id. A

few days later, after learning that Edward had died, Weiss drove Brown and Martin

to a bridge, where the gun was thrown into the water. Id. Martin absconded to

California and then to Canada, where he lived under a different name until he was

apprehended 23 years later, in December of 1999.

Id.

After his return to

Massachusetts, a jury convicted Martin of first-degree murder on a theory of felonymurder in May of 2001. Pet. App. 4a.

2. The Massachusetts Supreme Judicial Court (“SJC”) affirmed the conviction.

Commonwealth v. Martin, 144 N.E.3d 254 (Mass. 2020). Among the arguments that

Martin made on appeal was that he was entitled to a new trial under Commonwealth

v. Brown, 81 N.E.3d 1173 (Mass. 2017), a decision that came down after Martin’s trial

but before the conclusion of his direct appeal. Pet. App. 8a.

In Brown, a majority of the SJC narrowed Massachusetts’s felony-murder

doctrine, but provided that the change was purely prospective. 81 N.E.3d at 1178.

Felony-murder is a common law crime in Massachusetts—while the penalty is

established by statute, the elements of the offense are not set out therein but have

been defined through judicial decisions. Id. at 1189. At the time of the Brown

decision, the common law felony-murder doctrine “‘impose[d] criminal liability for

homicide on all participants in a certain common criminal enterprise if a death

2

occurred in the course of that enterprise.’” Id. (quoting Commonwealth v. Hanright,

994 N.E.2d 363, 368 (Mass. 2013)). The effect of the rule was “to substitute the intent

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

Id. at 1189 (quoting Hanright, 994 N.E.2d at 368) (internal quotation marks omitted).

The SJC unanimously rejected the Brown defendant’s argument that this common

law doctrine was unconstitutional. Id. at 1189-90. Nonetheless, a majority of the

court chose to change the doctrine going forward, holding 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.” Id. at 1191. Since the change was prospective only,

the SJC did not apply it to the defendant in Brown. Id. at 1178-79. 1 The defendant

in Brown sought review in this Court, urging that the SJC’s refusal to apply the

changed doctrine to his case violated the Due Process Clause of the Fourteenth

Amendment. See Pet. for Cert. in no. 17-7732, at 30-32. This Court denied certiorari.

Brown v. Massachusetts, 139 S. Ct. 54 (2018).

In the decision below, the SJC rejected petitioner’s argument that due process

principles required it to apply Brown to his case, emphasizing that Brown announced

a prospective alteration of the common law. Pet. App. 8a. “[W]here we revise our

substantive common law of murder,” the SJC held, “we are free to declare that our

1 The court did, however, exercise its authority under Massachusetts law to reduce

that defendant’s convictions from first- to second-degree murder on the ground that

this result was “more consonant with justice.” Id. at 1190-91.

3

new substantive law shall be applied prospectively, much like the Legislature may

do when it revises substantive criminal statutes.” Id. The court also observed that

Brown “was not a clarification of existing common law” but instead “constituted a

change to our common law,” and that it “did not announce a new constitutional rule.”

Id.

The SJC also distinguished precedent of this Court cited by petitioner: Griffith

v. Kentucky, 479 U.S. 314, 322 (1987) (holding that “failure to apply a newly declared

constitutional rule to criminal cases pending on direct review violates basic norms of

constitutional adjudication” (emphasis added)); Fiore v. White, 531 U.S. 225, 228

(2001) (holding that petitioner was entitled to collateral relief where, as the state

court’s clarification of a statute made clear, the state had convicted him “without

proving the elements of the crime beyond a reasonable doubt”); and Bunkley v.

Florida, 538 U.S. 835 (2003) (where “evolutionary refinement” in interpretation of a

statute affected whether petitioner could be guilty of the crime of which he was

convicted, remanding for state court to consider precisely when refinement occurred).

The SJC observed that Griffith requires only that new federal constitutional rules—

not state common law rules—be applied to cases on direct appeal. Pet. App. 8a. And

it described Fiore and Bunkley as holding that “subsequent clarifications of existing

substantive criminal law have retroactive effect,” a principle the SJC found

inapplicable because Brown “involved a change in the common law of felony-murder

and not a mere clarification.” Id. (emphases added).

4

Finally, the SJC found that the facts before it demonstrated the “wisdom” of

prospective-only application of the Brown felony-murder rule. Pet. App. 9a. If the

Brown court had applied its felony-murder rule retroactively, the SJC concluded, it

would have been required to order a new trial in petitioner’s case “because the jury

were not instructed that they had to find one of the three prongs of malice in order to

find the defendant guilty of felony-murder in the first degree.” Id. The SJC found

that this “would have been unfair to the Commonwealth” because the result would

have almost certainly been the same on retrial—“had the jury been so instructed, it

likely would have found that the defendant acted with malice in shooting the victim,

and that he did so during the commission of an attempted armed robbery, which

would have resulted in a verdict of murder in the first degree on the theory of felonymurder.” Id. The jury “might also have found the defendant guilty of murder in the

first degree on the theory of deliberate premeditation.” Pet. App. 11a, n.6.

REASONS TO DENY THE WRIT

I.

There is no split in authority on the question presented.

1. In rejecting petitioner’s claim that Brown applies to his case, the SJC relied

on its authority in crafting state common law. Since “‘[f]elony-murder is a common

law crime,’” the court observed, “we determine its elements.” Pet. App. 8a (quoting

Brown, 81 N.E.3d at 1173). And “much like the Legislature may do when it revises

substantive criminal statutes,” “we are free to declare that our new substantive law

shall be applied prospectively.” Pet. App. 8a.

5

Petitioner fails to identify a single lower court decision that calls this holding

into question. That is not surprising, since this Court affirmed nearly 90 years ago

that a state is not required to apply a new common law rule retroactively. See Great

N. Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932) (“This is a case where

a court has refused to make its ruling retroactive, and the novel stand is taken that

the Constitution of the United States is infringed by the refusal. We think the

Federal Constitution has no voice upon the subject.”); see also Mackey v. United

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

Oil as holding “that the Federal Constitution imposes no barrier to a state court’s

decision to apply a new state common law rule prospectively only”); accord

Wainwright v. Stone, 414 U.S. 21, 23-24 (1973) (citing Sunburst Oil in support of

holding that state supreme court could void felony statute prospectively while

applying it retroactively).

2. Petitioner asserts the existence of a conflict based on lower court decisions

that address state court interpretations of statutes. See Pet. 12-13 (citing, e.g., Nika

v. State, 198 P.3d 839 (Nev. 2008), cert. denied, 558 U.S. 955 (2009); Moore v. Helling,

763 F.3d 1011 (9th Cir. 2014); Fernandez v. Smith, 558 F. Supp. 2d 480 (S.D.N.Y.

2008)). These decisions do not conflict with the decision below, because statutory

interpretation is wholly different from state court common law refinement.

A court’s interpretation of a statute is, of course, based on the legislature’s

language. This Court has recognized that interpretation of a statute thus reflects a

6

court’s understanding of what the statutory language has always meant. See Rivers

v. Roadway Exp., Inc., 511 U.S. 298, 312-13 (1994) (“A judicial construction of a

statute is an authoritative statement of what the statute meant before as well as after

the decision of the case giving rise to that construction.”); id. at 313 n.12 (“when this

Court construes a statute, it is explaining its understanding of what the statute has

meant continuously since the date when it became law”); see also Bousley v. United

States, 523 U.S. 614, 633 (1998) (Scalia, J., dissenting) (same). Cf. Fleet Natl. Bank

v. Commissioner of Rev., 862 N.E.2d 22, 28 (Mass. 2007) (court should interpret

statute “‘according to the intent of the Legislature . . . to the end that the purpose of

its framers may be effectuated’” (quoting Hanlon v. Rollins, 190 N.E. 606, 608 (Mass.

1934)).

Common-lawmaking is different. When a state court develops common law, it

does not interpret statutory language that was written long ago by a different branch

of government and was in effect at the time of the offense, but instead engages in an

act analogous to legislating by crafting new language. This Court recognized the

unique characteristics of state court common-lawmaking in Rogers v. Tennessee,

observing that, “[i]n the context of common law doctrines,” “there often arises a need

to clarify or even to reevaluate prior opinions as new circumstances and fact patterns

present themselves.” 532 U.S. 451, 461 (2001). Common law courts, this Court held,

must enjoy “substantial leeway” as they “engage in the daily task of formulating and

passing upon criminal defenses and interpreting such doctrines as causation and

7

intent, reevaluating and refining them as may be necessary to bring the common law

into conformity with logic and common sense.” Id. at 461-62. In Rogers, for example,

the Court declined to apply ex post facto principles to a state court’s “routine exercise

of common law decisionmaking,” reasoning that it would “unduly impair the

incremental and reasoned development of precedent that is the foundation of the

common law system.” Id. at 461, 467. 2

Petitioner’s citations to cases involving statutory interpretation thus do not

demonstrate a conflict in the lower courts at all, let alone one that this Court must

resolve. Nika v. State and Moore v. Helling both relate to the effect on collateral

review of the Nevada Supreme Court’s new interpretation of a Nevada murder

statute in a previous case, specifically its holding that a jury instruction inconsistent

with that interpretation was invalid. See Nika, 198 P.3d at 844-51; Moore, 763 F.3d

at 1012-13. In Nika, the Nevada Supreme Court determined that the change in law

should have been applied to cases pending on direct appeal under Bunkley, but did

not apply the change to Nika because his petition was not on direct review at the time

of the changed interpretation. Nika, 198 P.3d at 850. In Moore, the Ninth Circuit

denied Moore’s federal habeas corpus claim, concluding that the Nevada Supreme

Court did not “unreasonably apply clearly established federal law” under the federal

2 The notice concern that divided this Court in Rogers—that a retroactive change

to the common law may result in a defendant not having fair warning that his conduct

was criminal at the time of his offense—does not arise here, because Massachusetts’s

old felony-murder rule was in effect when petitioner shot Edward Paulsen. See Pet.

App. 4a; Rogers, 532 U.S. at 461.

8

habeas statute, 28 U.S.C. § 2254, when it declined to apply its new interpretation of

the murder statute to Moore’s conviction, which was on direct appeal when the

change in law occurred. 763 F.3d at 1021-22. 3

Petitioner’s conflict claim is meritless because Nika and Moore relate to a

change in the interpretation of a statute; that is, they involve the consequences of a

state court’s changing its view as to what the state legislature’s language had always

meant. See Rivers, 511 U.S. at 312-13 & n.12. Those decisions thus offer no insight

into how the Nevada Supreme Court or the Ninth Circuit would rule on the

prospective application of a change in state common law. The same point also vitiates

any conflict with a third decision cited by petitioner, Fernandez v. Smith, a habeas

case in which the federal district court considered a new interpretation of New York’s

murder statute. 558 F. Supp. 2d 480, 499 (S.D.N.Y. 2008). 4 Petitioner fails to cite a

single case addressing a change in state common law.

3 Moore’s appeal was considered in the Nevada state courts prior to Nika, when

governing law in Nevada held that the new interpretation of the murder statute did

not apply retroactively. See Moore v. State, 27 P.3d 447, 450 n.16 (Nev. 2001).

4 To the extent (if any) that Fernandez does conflict with the decision below, that

conflict does not require intervention from this Court. A district court decision is not

binding in any other case. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).

Moreover, the Second Circuit may yet step in to resolve any conflict. Notably, views

on this issue are far from settled within the New York federal district courts. See,

e.g., Walker v. Graham, 955 F. Supp. 2d 92, 114-15 (E.D.N.Y. 2013) (denying federal

habeas claim where changed statutory interpretation was not applied to petitioner’s

case pending on direct appeal); Guzman v. Greene, 425 F. Supp. 2d 298, 317 (E.D.N.Y.

2006) (same); aff’d, 337 F. App’x 27 (2d Cir. 2009) (declining to consider issue, because

relevant state court decision interpreting statute came down after petitioner’s

conviction was final).

9

Moreover, the Nika and Moore courts both ruled against the claimants in those

cases, so any statements petitioner relies on in these decisions are pure dicta. Indeed,

due to the federal habeas posture of Moore, the Ninth Circuit explicitly declined to

make definitive pronouncements about the meaning of Griffith, Fiore, and Bunkley

in that case. See Moore, 763 F.3d at 1021 (“We do not aim to cover the universe of

fairminded interpretations of [Fiore] and Griffith, nor do we comment on what we

believe to be the correct interpretation of these cases. . . . [W]e do not decide today

whether Bunkley clearly established that changes in state law apply to cases pending

on direct appeal.”). Dicta do not establish a conflict; petitioner’s conflict argument

fails on this additional ground as well.

Other decisions cited by petitioner are even less relevant here. Petitioner cites

Riley v. McDaniel, 786 F.3d 719 (9th Cir. 2015), for its one-sentence description of

Nika as requiring, under Bunkley, that the narrowing of a criminal statute be applied

to defendants on direct appeal, but that description adds nothing to Nika itself. See

Pet. 12; Riley, 786 F.3d at 723 n.7. And the actual holding in Riley did not address

the legal claim petitioner raises, but instead addressed the Ninth Circuit’s

interpretation of Nevada law prior to 1992, when the defendant in that case was

convicted. See Riley, 786 F.3d at 724, 727. Petitioner also cites Babb v. Lozowsky,

719 F.3d 1019 (9th Cir. 2013), but the holding in Babb was overturned by the Ninth

Circuit in Moore. See Moore, 763 F.3d at 1021. While the court in Moore “express[ed]

10

no opinion” as to whether Babb’s analysis of Bunkley remained viable, the Moore

court treated such analysis as dicta at best. Moore, 763 F.3d at 1021.

Finally, petitioner asserts that several circuit court decisions raise a conflict

on the separate question of “whether Griffith v. Kentucky requires courts to

retroactively apply all new federal rules of criminal procedure, or just constitutionally

based rules, to cases pending on direct review.” Pet. App. 13-14. But that question

has no relevance here, where a change in state rather than federal law is at issue and

where non-constitutionally based federal rules of criminal procedure are inapplicable.

Of the five lower court decisions petitioner cites on this point, only one, Mason v.

Duckworth, involved state law. 74 F.3d 815 (7th Cir. 1996). And Mason, which held

that Griffith was irrelevant to a change in Indiana law, see Mason, 74 F.3d at 818-19,

is wholly consistent with the SJC’s similar holding below.

There is no conflict of authority on the question presented, and this Court

should therefore deny the petition for a writ of certiorari.

II.

This case is a poor vehicle for deciding the question presented.

This case is a poor vehicle for deciding the question presented, because

application of the Brown felony-murder rule would be highly unlikely to change the

result in this case. In Massachusetts, malice is defined “as an intent to cause death,

to cause grievous bodily harm, or to do an act which, in the circumstances known to

the defendant, a reasonable person would have known created a plain and strong

likelihood that death would follow.” Commonwealth v. Szlachta, 971 N.E.2d 1281,

11

1287 (Mass. 2012) (quoting Commonwealth v. Chhim, 851 N.E.2d 422, 430 (Mass.

2006)).

Petitioner shot the victim point blank in the chest from a distance of

approximately five feet; it was he, not an accomplice, who was directly responsible for

the victim’s death. Pet. App. 4a-5a. At a minimum, a reasonable person would have

known that pointing a loaded gun at someone’s chest created a “plain and strong

likelihood” that death would result. Further, there is little question that the victim

was fatally shot during an attempted armed robbery. Pet. App. 10a. Thus, as the

SJC noted, even had the jury been instructed under the Brown felony-murder rule

that it must find actual malice, the jury almost certainly would have convicted

petitioner of felony-murder. Pet. App. 9a.

This case is also a poor candidate for deciding the question presented because

of the unique circumstances here. Petitioner shot Richard Paulsen in 1976, long

before the Brown decision, but was a fugitive from justice for twenty-three years

before he could be tried. Pet. App. 4a-5a. In the unlikely event that petitioner were

to prevail on retrial under the Brown felony-murder rule, he would benefit from

having been a fugitive for decades. Such an outcome would not serve the interests of

justice or fairness.

III.

The decision below is correct.

This Court should not grant the petition for the further reason that the SJC

did not err. It correctly concluded that state courts have the authority to apply new

rules of criminal common law purely prospectively.

12

A.

The SJC’s decision is consistent with the decisions of this

Court.

1. In Sunburst Oil, this Court held that the federal constitution imposes no

barriers on a state court’s decision to apply a new state common law rule only

prospectively, as the SJC did in Brown. 287 U.S. at 364-65; see also Mackey, 401 U.S.

at 698.

Fiore and Bunkley did not call into question, much less overrule, that

proposition.

To the contrary, both Fiore and Bunkley involve statutory interpretation, and

thus do not apply to a case like this one where a state court changes the definition of

a common-law crime, as the SJC correctly recognized. Pet. App. 8a. In Fiore, this

Court addressed a Pennsylvania state statute that made it unlawful to operate a

hazardous waste facility without a permit.

531 U.S. at 226-27.

After Fiore’s

conviction became final, the Pennsylvania Supreme Court, in Commonwealth v.

Scarpone, 634 A.2d 1109, 1112 (Pa. 1993), reversed Fiore’s co-defendant’s conviction

on the ground that someone who had a permit but had deviated from his permit’s

terms, like both Fiore and his co-defendant had, was not guilty under the statute.

Fiore, 531 U.S. at 226-27. This Court “granted certiorari in part to decide when, or

whether, the Federal Due Process Clause requires a State to apply a new

interpretation of a state criminal statute retroactively to cases on collateral review.”

Id. at 226.

However, in response to a certified question from this Court, the

Pennsylvania Supreme Court held that the decision in Scarpone was not “a new rule

of law”; rather, it had “merely clarified the plain language of the statute” and thus

13

constituted the proper statement of the law at the time Fiore was convicted. Id. at

228. In light of this response, this Court reversed Fiore’s conviction because he could

not have been found guilty of one of the crime’s elements (namely, lacking a permit),

and “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. Fiore thus has nothing to say about the entirely different

situation where a defendant was properly convicted of a common-law crime under the

then-existing doctrine, and a state court later changes that doctrine.

Similarly, Bunkley concerned a Florida statute that defined first-degree

burglary as a burglary committed with a dangerous weapon. 538 U.S. at 836-37.

Bunkley was convicted under the statute because he was found to have committed a

burglary while in possession of a pocketknife with a blade of 2½ to 3 inches in length.

Id. Eight years after Bunkley’s direct appeal concluded, the Florida Supreme Court

interpreted the meaning of “dangerous weapon” in L.B. v. State, 700 So. 2d 370 (Fla.

1997) (per curiam). Bunkley, 538 U.S. at 837. L.B. had held that a pocketknife of

four inches or less was excepted from the definition of “dangerous weapon” and

vacated L.B.’s armed burglary conviction. Id. However, the Florida Supreme Court

rejected Bunkley’s post-conviction claims, holding that its decision in L.B. did not

apply retroactively because it was merely “an evolutionary refinement in the law.”

Id. at 838. Applying the rule announced in Fiore, this Court vacated the state court

judgment and remanded the case to the Florida Supreme Court for a determination

14

as to what the state of the law was at the time that Bunkley’s conviction became final.

Id. at 840-42. On remand, the Florida Supreme Court clarified that the “evolutionary

refinement” in the decisional law with respect to the statute occurred after Bunkley’s

conviction became final, and therefore “Bunkley’s conviction [did] not violate the

federal due process requirements stated in Fiore.” Bunkley v. State, 882 So. 2d 890,

894, 897 (Fla. 2004), cert. denied, 543 U.S. 1079 (2005).

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

statute, it does not present the same issues as Fiore and Bunkley. In each of those

cases, a petitioner was convicted under a state statute, and following the conclusion

of his appeal, the state supreme court issued a decision interpreting that same statute

in a manner that raised questions about whether the petitioner’s conduct fell within

its scope. Fiore, 531 U.S. at 226-29; Bunkley, 538 U.S. 836-37, 840-41. Neither

decision involved a state court’s amendment of a common law rule after the conduct

at issue had occurred.

A state court’s amendment of a common law rule following a defendant’s

conduct is analogous to a legislature’s amendment of a statute following that conduct,

not to a state court’s interpretation of a statute that governed at the time of the

conduct. And in the context of amended legislation, there is no dispute that it is

constitutionally permissible to apply the substantive law that was in effect at the

time of the conduct at issue. See McNulty v. California, 149 U.S. 645, 648 (1893)

(state decision that defendant “should be punished under the law as it existed at the

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time of the commission of the crime of which he was convicted involved no federal

question whatever,” despite subsequent legislative amendment of the law); 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). As with amended legislation, a state

court developing the common law may decline to apply a new rule to cases on direct

appeal. Fiore and Bunkley are therefore inapposite. For this same reason, this case

does not present an opportunity to answer the question as to which this Court

originally granted certiorari in Fiore.

2. Petitioner’s assertion that Fiore and Bunkley require changes in state law to

be applied to cases on direct appeal, Pet. 7-10, is not correct; neither case so holds.

Fiore held nothing more than that Pennsylvania could not, “consistently with the

Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as

properly interpreted, does not prohibit.” 531 U.S. at 228. In Bunkley, this Court

applied this same analysis to the later judicial interpretation of a pre-existing statute,

and stated clearly that Fiore was controlling. 538 U.S. at 840. This Court neither

affirmed nor reversed Bunkley’s conviction; it merely remanded the case to the state

court for a determination about the state of the law at the time that Bunkley’s

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conviction became final. Id. Petitioner makes much of Bunkley’s reference to the

date of finality—and of this Court’s request in Fiore that the state court clarify the

correct interpretation of the law when Fiore’s conviction became final, Fiore, 531 U.S.

at 228—but the distinction between the conviction date and finality date had no effect

on the result in either case. The language on which petitioner relies is thus pure

dicta.

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

time he committed the offense. In contrast to Fiore and Bunkley, there is no concern

here that petitioner was convicted, under a state statute or common law rule, for

conduct that did not satisfy the elements of the offense as they were then defined–

something that would be a clear violation of Due Process. See Fiore, 531 U.S. at 22829 (“We have held that 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.”); Bunkley, 538 U.S. at 841 (“L.B. cast doubt on the

validity of Bunkley’s conviction. . . . In the face of such doubt, Fiore entitles Bunkley

to a determination as to whether L.B. correctly stated the common pocketknife

exception at the time he was convicted.”). The SJC clearly held that petitioner’s

conduct constituted the crime of felony-murder under the law as it stood at the time

he committed the offense and at the time he was convicted. Pet. App. 8a-9a. Thus,

the SJC’s prospective application of the Brown common law felony-murder doctrine

is not in conflict with this Court’s decisions in Fiore and Bunkley.

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3. Contrary to petitioner’s assertion, Pet. 6, Griffith also has no application

here. In Griffith, this Court addressed the question of retroactivity as it applied to a

new federal constitutional rule, and held that “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending on

direct review or not yet final.” 479 U.S. at 328. The SJC’s change in the doctrine of

felony-murder liability is not a new federal constitutional rule. See Pet. App. 8a

(“Brown neither established a new Federal constitutional rule nor a new Federal rule

of criminal procedure”). Thus, petitioner’s reliance on Griffith is wholly misplaced. 5

B.

The SJC’s decision is consistent with principles of federalism.

That no decision of this Court prevents state courts from applying changes in

common law purely prospectively is consistent with long-established principles of

federalism. In Sunburst Oil, this Court emphasized state sovereignty in holding that

“the federal constitution has no voice upon the subject” of whether a change in state

law is applied retroactively:

A state in defining the limits of adherence to precedent may make a

choice for itself between the principle of forward operation and that of

relation backward. . . . The choice for any state may be determined by

the juristic philosophy of the judges of her courts, their conceptions of

law, its origin and nature. We review not the wisdom of their

philosophies, but the legality of their acts.

5 Moreover, the two rationales for this Court’s holding in Griffith–Article III of the

federal Constitution and equal protection concerns–do not apply here. 479 U.S. at

322-23. Article III does not apply to the states. And the SJC in Brown did not apply

its new common law rule to the defendant in that case, so there is no concern about

similarly-situated defendants on direct appeal being treated differently.

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287 U.S. at 364. Courts have recognized that state courts have more freedom than

their federal counterparts in creating new laws. See Northwest Airlines, Inc. v.

Transport Workers Union of Am., 451 U.S. 77, 95 (1981) (“federal courts, unlike their

state counterparts, are courts of limited jurisdiction that have not been vested with

open-ended lawmaking powers”).

These principles of federalism allow state courts to make improvements to

state common law consonant with justice and evolving times. A rule that strips state

courts of the freedom to apply new state laws solely prospectively would discourage

such improvements. Under such a rule, a state court’s decision amending common

law would render relevant cases on direct appeal—perhaps large numbers of them—

vulnerable to reversal, even if reversal would be an empty exercise because the

conviction was valid under the law as it existed at the time and would almost

certainly stand under the new standard as well. The SJC recognized this problem.

It found that, if the jury had been instructed on the new common law of felony-murder

adopted in Brown, it likely would have found Martin guilty of first-degree murder.

Pet. App. 9a. Applying the new law to cases on direct review would have meant that

petitioner was likely entitled to a new trial, forcing the Commonwealth to retry the

case when—as the SJC noted—the Commonwealth had reasonably relied on the state

of the law at that time. Id. Faced with such consequences, a state appellate court in

such a situation might choose not to change the common law rather than apply the

new rule to all cases on direct appeal, thereby “unduly impair[ing] the incremental

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and reasoned development of precedent that is the foundation of the common law

system.” Rogers, 532 U.S. at 467.

CONCLUSION

For the foregoing reasons, this Court should deny the petition for a writ of

certiorari.

Respectfully submitted,

MAURA HEALEY

Attorney General for the

Commonwealth of Massachusetts

/s/ Tara L. Johnston

TARA L. JOHNSTON*

ANNA E. LUMELSKY

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

tara.johnston@mass.gov

(617) 963-2677

*Counsel of Record

February 1, 2021

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