McGonagle v . US CV-02-073-M 10/23/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patrick McGonagle, Petitioner, Civil N o . 02-73-M

Anthony Shea, Petitioner, Civil N o . 02-75-M

Matthew McDonald, Petitioner, Civil N o . 02-84-M

Michael O’Halloran, Petitioner, Civil N o . 02-88-M

Stephen Burke, Petitioner, Civil N o . 02-90-M

v. Opinion N o .

United States of America, Respondent

O R D E R

In 1997, a federal grand jury returned a second superceding

indictment charging Anthony Shea, Michael O’Halloran, Matthew

McDonald, Stephen Burke, Patrick McGonagle (collectively,

“Petitioners”)1 and John Burke with numerous offenses relating to

1 The means by which state prisoners seek federal habeas relief are typically referred to as either “applications,” see

, or “petitions,” see, e.g., Williams v . Taylor, 52 a series of bank and armored car robberies that occurred between

1990 and 1996. During the trial, co-defendant John Burke decided

to change his plea to guilty. After pleading guilty, John Burke

was called as a witness by the government and testified against

his co-conspirators in the ongoing trial.

The trial continued for three months. At its conclusion,

the jury convicted petitioners on all counts charged against them

in a redacted, 14 count indictment, with one exception. As to

petitioner McGonagle (who was charged in five of the 14 counts),

the jury returned a verdict of “not guilty” on a carjacking

charge related to an armored car robbery that took place in

Hudson, New Hampshire, during which two guards were murdered.

The court of appeals summarized the jury’s verdict as follows:

All five of the defendants were convicted of conspiracy to commit armed robberies and of committing and conspiring to commit the Hudson robbery. All of the defendants except McGonagle were convicted of operating

U.S. 362 (2000). As to federal prisoners, however, section 2255 employs slightly different nomenclature, referring instead to “motions.” But, as the court of appeals for this circuit has noted, the term “petition” is more commonly used “to describe the vehicle by which a person held in custody seeks post-conviction relief.” Raineri v . United States,

6 , 97 n.1 (1st Cir. 2000). Accordingly, the court will use the terms “petition” and “petitioners” throughout this opinion.

2 a racketeering enterprise, engaging in a racketeering conspiracy, carjacking in connection with the Hudson robbery, and of various firearms offenses. Shea, [Stephen] Burke and O’Halloran were also convicted of committing and conspiring to commit the Seabrook armored car robbery.

United States v . Shea, et a l . ,

5 8 , 664 (1st Cir. 2000),

cert. denied,

(2001). Shea, O’Halloran, McDonald,

and Burke were sentenced to life imprisonment. McGonagle was

sentenced to 360 months.

The court of appeals affirmed petitioners’ convictions and

the sentences imposed under the United States Sentencing

Guidelines, with one exception. As to McDonald’s convictions for

being a felon in possession of a firearm and a drug user in

possession of a firearm, the court concluded that, while the

“multiple convictions” were not clear error, McDonald could not

be punished for both crimes. Accordingly, the court vacated

McDonald’s sentence on the drug user-in-possession count, with

instructions to merge the sentence for that offense with that

imposed on the felon-in-possession count. Id. at 676. As a

practical matter, however, the court of appeals’ decision had no

impact on McDonald’s life sentence.

3 Petitioners’ convictions became “final” on February 2 0 ,

2001, when the United States Supreme Court denied their petitions

for certiorari. Shea, et a l . v . United States,

(2001). Petitioners have filed timely petitions seeking habeas

corpus relief pursuant to

. Although each has

filed a separate petition, those submitted by Shea, O’Halloran,

and McDonald are virtually identical. Burke’s petition mirrors

the others in large measure, but adds a few unique claims.

McGonagle seeks habeas relief on a single ground not raised by

the other petitioners.2 Accordingly, except where specifically

noted, the court’s discussion of the issues raised in Shea’s

petition applies with equal force to all petitioners.

Standard of Review

I.

Generally.

Petitioners seek habeas corpus relief under

, which provides:

2 McGonagle also says he “joins” in the petitions filed by the others, but he has not filed a motion seeking leave to do s o . Nevertheless, given his pro se status, the court will consider McGonagle’s petition as including the claims and arguments advanced by his fellow petitioners.

4 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

. The relief afforded by § 2255 i s , however,

available in only limited circumstances. See, e.g., United

States v . Bokun,

, 12 (2d Cir. 1995) (“a collateral

attack on a final judgment in a federal criminal case is

generally available under § 2255 only for a constitutional error,

a lack of jurisdiction in the sentencing court, or an error of

law or fact that constitutes a fundamental defect which

inherently results in a complete miscarriage of justice.”)

(citation and internal quotation marks omitted). As the court of

appeals for this circuit has observed, “[s]ection 2255 is not a

surrogate for a direct appeal.” David v . United States,

(1st Cir. 1998). See also United States v . Frady,

5 2 , 165 (1982).

5 Absent an intervening change in the applicable law, or

compelling equitable considerations, inmates seeking habeas

relief are typically barred from raising the same issues in a §

2255 petition that were previously raised on direct appeal. See

Conley v . United States, __ F.3d __,

at *4 (1st

Cir. July 1 5 , 2002). Moreover, absent a showing of “cause and

actual prejudice,” petitioners are precluded from litigating

issues in a habeas proceeding that could have been, but were not,

raised on direct appeal (commonly known as “procedurally

defaulted” claims). See, e.g., Knight v . United States,

(1st Cir. 1994).

II. Ineffective Assistance of Counsel.

Importantly, however, “the failure to bring a claim of

ineffective assistance of counsel on direct appeal is not subject

to the cause and prejudice standard.” Knight,

.

S o , inmates aware of the restrictions imposed on § 2255 petitions

typically attempt to couch challenges to underlying criminal

convictions in terms of the Sixth Amendment, claiming that the

asserted errors were the product of constitutionally deficient

6 counsel. So it is here with regard to the majority of claims

advanced by petitioners.

To prevail on an ineffective assistance of counsel claim, a

petitioner must “show, by a preponderance of the evidence, that

trial counsel’s conduct fell below the standard of reasonably

effective assistance and that counsel’s errors prejudiced the

defense.” Gonzalez-Soberal v . United States,

(1st Cir. 2001) (citing Strickland v . Washington,

6 8 ,

687 (1984)). See also Cofske v . United States,

(1st

Cir. 2002). In assessing the quality of trial counsel’s

representation, the court employs a highly deferential standard

of review and “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance; that i s , the defendant must overcome the presumption

that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689

(citation and internal quotation marks omitted). In other words,

to satisfy the first prong of the Strickland test, a petitioner

must demonstrate that his counsel made errors that were “so

serious that counsel was not functioning as the ‘counsel’

7 guaranteed the defendant by the Sixth Amendment.” Smullen v .

United States,

0 , 23 (1st Cir. 1996) (quoting

Strickland, 466 U.S. at 687)).

To satisfy the second prong of the Strickland test, a

petitioner must show “actual prejudice.” As the court of appeals

has observed, “prejudice exists in a particular case when there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Gonzalez-Soberal,

(citation and

internal quotation marks omitted). A reasonable probability is

“one sufficient to undermine confidence in the outcome.”

(citation omitted).

Grounds for Relief Advanced by All Petitioners

I. Ground One - Jury Instructions.

Petitioners’ first asserted ground for relief under § 2255

challenges the sequence in which the jury received instructions

on the law and counsel provided closing argument. Specifically,

petitioners say their counsel (both trial and appellate) provided

ineffective representation by failing to object when the court

8 instructed the jury prior to closing arguments - a procedure they

say resulted in a “structural error” that deprived them of

(unspecified) constitutional rights – and by failing to raise

that issue on appeal. Petitioners also challenge (through an

ineffective assistance claim) the fact that the court provided

each juror with written instructions and allowed him or her to

take the instructions home.3

With regard to the timing of closing arguments, the court

agreed, at the charging conference, to instruct the jury prior to

closing arguments only if all defendants and the prosecution

preferred that order. Some counsel wanted the jurors to be

instructed on the applicable law before they heard counsels’

closings, others were ambivalent, but in the end all agreed. In

any event, Rule 30 of the Federal Rules of Criminal Procedure

provides that, “The court may instruct the jury before or after

the arguments are completed or at both times.” Thus, there is

3 Petitioners raise additional issues related to jury instructions and closing argument that are so plainly without merit they warrant no discussion (e.g., challenging the fact that the government was given a “second bite at the apple” - i.e., rebuttal argument; use of section headings in the written jury instructions; e t c . ) . It is sufficient to note that those alleged defects in the trial (and petitioners’ related assertions of ineffective assistance of counsel) do not warrant habeas relief.

9 nothing unlawful or inappropriate about instructing the jury

prior to closing arguments, even in the absence of agreement, or

over the objection of one or more defendants. And, even if it

were error to instruct before closing argument, petitioners have

failed to articulate any meaningful way in which they were

prejudiced by that procedure.

As to the fact that jurors were provided with copies of

written jury instructions, petitioners say they suffered “actual

prejudice from jurors being unfairly given the entire evening of

December 9, 1997, to review evidence and think about jury

instructions, alone and unsupervised.” Shea’s petition at 9.

Petitioners add that “[n]o cautionary instructions were given

directing jurors not to begin mental deliberations during

government closing argument and to wait until after they gave

equal consideration to defense closing argument.” Id. at 12. 4

4 While petitioners are correct insofar as they point out that the court did not instruct the jury to refrain from engaging in “mental deliberations” until after defense counsel had given their closing arguments, the court did specifically instruct the members of the jury about their use of the written instructions. See Transcript of trial day 50 (document n o . 908) at 75 and 156.

10 Petitioners make much of their concern that, by having

instructions on the applicable law prior to closing arguments,

jurors likely began “mental deliberations” before actually

convening in the jury deliberation room, after all closing

arguments were complete. It is reasonable to assume that the

jurors began considering and weighing the evidence long before

formal deliberations began, and before the court instructed them

on the applicable law (e.g., assessing the credibility of

witnesses as they testified; making ongoing determinations as to

whether a particular piece of evidence was relevant and, if s o ,

how it might fit into the government’s or defendants’ theory of

the case, as described in opening statements; e t c . ) . Jurors are,

of course, permitted to do just that. What they are (and, in

this case, were) specifically (and repeatedly) instructed not to

do is make up their minds about any defendant’s guilt or

innocence until after all the evidence is in and closing

arguments are complete. In short, while petitioners are probably

correct that the jurors engaged in “mental deliberations” during

the course of trial – if by that petitioners mean “jurors thought

about the evidence and its relevance to the crimes charged” –

that fact does not entitle petitioners to habeas corpus relief.

11 Nor does the fact that the court provided jurors with copies

of the written instructions entitle petitioners to habeas relief.

First, such a practice is plainly authorized and committed to the

court’s sound discretion. See, e.g., United States v . Blane,

(6th Cir. 1967) (collecting cases). 5 Second,

petitioners have failed to point to any prejudice that they might

have suffered as a consequence. To the contrary, ordinarily,

providing jurors with written instructions actually favors the

defendant(s). Written instructions enable each juror, during

deliberations, to focus on every essential element as to which

the government bears the burden of proof beyond a reasonable

doubt. That practice tends to increase the likelihood that,

should the jury return a guilty verdict, it is firmly based on

the applicable law, rather than on some vague memory of lengthy

oral instructions, or on a general sense of the defendant’s guilt

or innocence o r , even worse, based simply on a generalized

feeling about the defendant’s character. Particularly in complex

cases such as this, that involve lengthy, detailed, multiple

count indictments, and highly complicated aspects of criminal

5 The court of appeals’ opinion in United States v . Parent,

(1st Cir. 1992), is plainly inapplicable to the facts of this case and petitioners’ reliance on that opinion is misplaced. 12 law, the more familiar the jury is with the applicable law, the

more certain its verdict will be based on an accurate application

of that law to the particular facts of the case.

II. Ground Two - Security Procedures.

As their next ground for habeas relief, petitioners assert

that they were subjected to unlawful “security procedures” in the

courtroom which deprived them of a fair trial. Specifically,

petitioners say that because they were required to wear leather

leg restraints during the course of trial, jurors were likely

biased against them, resulting in an unfair trial. They also

challenge the court’s decision to empanel a partially anonymous

jury. Again, the alleged errors are couched in terms of a claim

that defense counsel were ineffective in failing to object to the

challenged procedures and/or failing to adequately raise the

issue on appeal.

A. Use of Leg Restraints.

After the court, in consultation with the United States

Marshall, determined that defendants posed a serious security

risk, it ordered that each defendant wear leg restraints during

13 the course of trial. See generally United States v . Mayes,

(11th Cir. 1998) (discussing the various

factors that should inform a trial court’s discretion when

deciding whether and, if s o , how to restrain potentially

dangerous or violent defendants); United States v . Collins,

(9th Cir. 1997) (same). In this case, leather

leg restraints lined with wool were used as an alternative to

traditional leg “irons” so each petitioner could move in his

chair and change position without making any noise likely to

alert jurors to the fact that he was restrained in some manner.

Leather leg restraints were also employed as the least

restrictive means available by which to control petitioners’

movement.6

Moreover, the courtroom furniture was rearranged so each of

the tables at which petitioners sat was facing the jury box,

thereby preventing any member of the jury from seeing

petitioners’ feet or legs (the tables at which counsel and

6 In consultation with the United States Marshall, the court briefly considered the use of “taser belts,” but, largely at the urging of the Marshall, rejected that as an option. See generally Collins,

(discussing the court’s rejection of taser belts).

14 petitioners sat were equipped with front and side panels that

extended to the floor). And, all defendants were brought into

the courtroom and seated at their respective tables before the

jury was ever brought into the courtroom. Obviously, defendants

were also cautioned about intentionally displaying the

restraints. Similarly, the jury was always dismissed from the

courtroom before any petitioner was permitted to move from behind

the tables or leave the courtroom. In short, effective steps

were taken to insure that no member of the jury was ever made

aware of the fact that petitioners’ legs were restrained.

In fact, petitioners do not suggest that any member of the

jury was ever aware that they were restrained. See, e.g., Mayes,

(“In Illinois v . Allen, the Supreme Court

observed that ‘the sight of shackles . . . might have a

significant effect on the jury’s feelings about the defendant.’

The restraints in this case were not capable of affecting the

jury’s attitude in any way because the district court took great

care to ensure that the jury never saw that the appellants were

wearing leg irons.”) (citation omitted). See also United States

v . Baker,

(9th Cir. 1993), overruled on other

15 grounds,

(9th Cir. 2000). Consequently,

petitioners have failed to identify any harm or other prejudice

resulting from the challenged procedures, or from trial counsels’

failure to adequately object to those procedures, or from

appellate counsels’ failure to pursue the issue on appeal.

Petitioners are not, therefore, entitled to habeas relief on that

basis.

B. Anonymous Jury.

Prior to trial, the court provided each petitioner with a

copy of a proposed order concerning the empanelment of a

partially anonymous jury. The government and all petitioners

were afforded the opportunity to comment on and/or object to that

proposed order. Following extensive discussion with the parties,

the court found that the circumstances of this case warranted the

empanelment of a partially anonymous jury - that i s , the names of

the members of the jury pool would be provided to counsel (and

their support staff), but they would not be permitted to share

potential jurors’ names with their clients. See generally

(b)(7). Petitioners challenge the court’s ruling,

saying:

16 [The] [a]bsence of sufficient voir dire and exacerbating erroneous cautionary instructions given, combined with the absence of adequate trial cautionary instructions and total omission of final jury instructions aimed at mitigating or negating prejudice created by jurors knowing they were anonymous and knowing trial court believed defendants were extremely dangerous and precluded from knowing jurors names/addresses, is pled as violating constitutional presumption of innocence.

Shea’s petition at 2 7 .

Petitioners generally allege that, had their counsel acted

in a reasonable and professional manner, they could have (and

should have) prevented the court from empaneling a partially

anonymous jury (alternatively, they say appellate counsel was

constitutionally deficient by failing to adequately present the

issue on appeal). And, due to counsels’ allegedly deficient

representation, petitioners say they were prejudiced “by not

knowing surnames and addresses of jurors thereby preventing

[petitioners] from knowingly and intelligently exercising

peremptory challenges to jurors who live near other uncharged

crime spree locations involved with co-petitioner’s alleged

invasion of the State of New Hampshire.”

17 Again, petitioners have failed to plead facts that meet

either prong of the Strickland test. First, they have not

pointed to anything that might suggest that counsel was

constitutionally deficient in this regard. Although the

empanelment of an anonymous (or even partially anonymous) jury is

an “extraordinary protective device,” United States v . DeLuca,

4 , 31 (1st Cir. 1998), which should be used in only

limited circumstances,

it is a permissible precaution where (1) there are strong grounds for concluding that it is necessary to enable the jury to perform its factfinding functions, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.

See also United States v . Marrero-Ortiz,

6 8 , 776

(1st Cir. 1998). In this case, the court found that the

empanelment of a partially anonymous jury was necessary to ensure

juror protection and enable the jury to perform its functions

without fear of inappropriate interference. And, appropriate

safeguards were adopted to ensure that petitioners’ fundamental

rights were not adversely affected.

18 Moreover, petitioners have not shown how they might have

suffered actual prejudice as a result of counsels’ alleged

deficient conduct in failing to adequately object to (or raise on

appeal) the court’s decision in this regard. Counsel

representing each petitioner (as well as counsels’ support staff)

had complete access to jurors’ personal information and,

notwithstanding petitioners’ claims to the contrary, were fully

able (to the extent they deemed necessary and/or appropriate) to

exercise peremptory challenges based on that information.

Petitioners’ remaining challenges to the security procedures

employed during trial (again, presented in the context of a

Strickland claim) are equally unavailing and the record

conclusively reveals that they are not entitled to habeas relief

on any of the grounds advanced. See

.

III. Ground Three - Flawed Jury Instructions.

Again recognizing that the failure to raise objections to

the jury instructions on direct appeal severely restricts their

ability to pursue that issue in the context of a habeas petition,

petitioners assert that counsel rendered constitutionally

19 deficient assistance by failing to challenge the instructions on

appeal. Specifically, petitioners say their “convictions were

unlawfully obtained and affirmed through prejudicial instruction

omissions, unbalanced or erroneous jury instructions, and related

errors [that trial counsel] had no strategic basis for not

objecting to or failing to request correct instructions, and

which appellate counsel had no strategic reason for failing to

present in the direct appeal.” Shea’s petition at 3 4 .

A. Lack of “Alibi” Instruction.

None of the petitioners (acting through counsel) requested

the court to provide an “alibi” instruction to the jury, nor did

any of the petitioners object to the absence of such an

instruction. No doubt because the issue was not raised on appeal

(and i s , therefore, procedurally defaulted), petitioners advance

it in the context of an ineffective assistance of counsel claim;

that i s , they say their trial and appellate counsel rendered

constitutionally deficient assistance by failing to raise the

issue at the appropriate time (e.g., at trial and then again on

appeal).

20 Even if the court were to assume that both trial and

appellate counsel were constitutionally deficient in the way they

handled the alibi instruction issue, petitioners still cannot

carry their burden with regard to the second element of the

Strickland test. That is to say, petitioners cannot demonstrate

that they were prejudiced by the lack of a specific “alibi”

instruction.

The primary purpose of an “alibi” instruction is to “remind

the jury as to the government’s burden of demonstrating all

elements of the crime beyond a reasonable doubt, including

defendant’s presence at the crime scene.” United States v .

McCall,

(6th Cir. 1996). 7 Notwithstanding the

absence of a specific alibi instruction, the instructions given

to the jury made abundantly clear the extent of the government’s

substantial burden of proof with regard to every essential

element of each crime charged. See, e.g., Jury Instructions

7 Parenthetically, the court notes that, except for the firearms and RICO charges, each count in the second superceding indictment charged petitioners with either “aiding and abetting” the substantive crime alleged, or conspiracy. Consequently, the jury did not have to conclude that petitioners were actually present at the scene of any one or more of the alleged crimes in order to return a guilty verdict.

21 (document n o . 873.3) at 17-19 (presumption of innocence and

government’s burden of proof); 19-20 (government’s burden of

proof); 93 (government must prove every essential element of

crime charged beyond a reasonable doubt). Jury members were well

aware that, to the extent their verdict as to any petitioner on

any specific count required a finding that he was physically

present in a particular location at a particular time, they were

required to unanimously agree that the government had proved that

fact beyond a reasonable doubt.

Additionally, counsel for petitioners, where appropriate,

strenuously argued that their clients had alibis for various

crimes (and overt acts) alleged in the indictment. See, e.g.,

Closing argument on behalf of Stephen Burke, transcript of trial

day 52 at 10 (noting that Burke held a full time job and there

was no “evidence in this case by the government that M r . Burke

missed work on the day of any robbery that he is charged with in

the indictment.”); 13 (no surveillance evidence of Burke’s

presence); 51-52 (discussing evidence suggesting Burke was at

Shoreway Acres on the day of the Hudson armored car robbery); 57-

58 (discussing evidence suggesting Burke was not in Florida when

22 West Palm Beach robbery took place); Closing argument on behalf

of Patrick McGonagle, transcript of trial day 53 at 45-48

(discussing evidence suggesting that McGonagle could not have

participated in the Hudson robbery); Closing argument on behalf

of Michael O’Halloran, transcript of trial day 53 at 67-68

(“[T]hat’s real alibi evidence, ladies and gentlemen. And I mean

in a true sense. Not an alibi that somebody makes up to avoid

very serious liability.”); 74 (discussing work records that

demonstrate O’Halloran could not have been present at the scene

of the Norwell robbery). In fact, the jury appears to have

credited McGonagle’s alibi defense to the carjacking charge,

insofar as its “not guilty” verdict suggests that it concluded he

was not present at the scene of the crime and did not participate

in the carjacking.

In short, petitioners have failed to demonstrate that any

prejudice resulted from the lack of a specific “alibi”

instruction. See, e.g., McCall,

(concluding that

there is no plain error in failing to give an alibi instruction

“as long as the jury is otherwise correctly instructed concerning

the government’s burden of proving every element of the crimes

23 charged, and the defendant is given a full opportunity to present

his alibi defense in closing argument.”); United States v . Dawn,

(8th Cir. 1990) (“The alibi defense was

argued in closing, the jury was clearly instructed that the

government had to prove all elements of the charge beyond a

reasonable doubt, and the evidence against [defendant] was

relatively strong. The error, if any, [in failing to give an

alibi instruction] was clearly harmless.”).8

B. Lack of Evidence of Insurance by FDIC.

Next, petitioners challenge defense counsels’ failure to

seek judgments of acquittal with regard to the bank robbery

8 Petitioners also appear to take issue with trial counsels’ alleged refusal to call certain witnesses (including petitioners themselves), whom petitioners now assert could have provided alibis for certain crimes and/or overt acts alleged in the indictment. Petitioners have failed, however, to provide affidavits from those alleged witnesses, detailing what relevant testimony they were prepared to offer, had they been called to testify. Consequently, petitioners cannot show that they were prejudiced by what were likely strategic decisions made by counsel in determining that those witnesses (including petitioners themselves) could not provide sufficient evidence helpful to the defense to warrant the risks associated with calling them to testify. See generally Lema v . United States,

8 , 54 (1st Cir. 1993) (“The decision whether to call a particular witness is almost always strategic, requiring a balancing of the benefits and risks of the anticipated testimony.”).

24 charges (or press the issue on appeal), saying the government

failed to introduce any evidence that the subject banks were

insured by the FDIC. That assertion i s , however, factually

incorrect. On November 1 9 , 1997 (trial day 4 1 ) , the government

introduced documentary evidence demonstrating that the banks

referenced in count 8 (bank robbery) - First NH Bank and NFS

Savings Bank - were insured by the FDIC.

Government: Your honor, I have two exhibits, certified records of public documents to offer . . . .

The Court: All right. Any objection? Does counsel know what they are?

Government: These are [exhibits] 150 for identification and 151 [for identification], FDIC certified records that on August 25th, 1994, the NFS Bank in Hudson, New Hampshire, was insured by the FDIC. And as to First New Hampshire Bank on August 2 5 , 1994, First New Hampshire Bank in Hudson, New Hampshire, was insured by the FDIC.

The Court: Any objections?

Counsel: No your honor.

The Court: ID may be stricken on Government’s 150 and 151.

25 Transcript, Trial Day 4 1 , November 1 9 , 1997, at 153-54. See also

Corrected USA Exhibit List (document n o . 6 7 1 ) .

C. Instructions on Aiding and Abetting Armed Robbery.

Petitioners also challenge the court’s instruction with

regard to an element of the government’s burden of proof as to

count eight of the second superceding indictment. Specifically,

petitioners take issue with the court’s instruction that, before

any defendant could be convicted of aiding and abetting armed

bank robbery, the government had to prove:

that the defendant was “on notice of the likelihood” of the use of a firearm by at least one accomplice. “On notice of the likelihood” does not mean that the defendant had actual knowledge that a firearm would be used in the robbery; only that, under the circumstances, he knew that it was reasonably likely that a firearm would be used.

Jury Instructions (document n o . 837.3) at 3 0 . Petitioners

suggest that the instruction provided by the court (to which

counsel did not object) unconstitutionally lowered the

government’s burden of proof - that i s , it permitted the jury to

convict without proof that a defendant had actual knowledge that

a firearm would be employed during the course of the robbery.

26 While petitioners’ point is an interesting one, it is

legally incorrect.9 The challenged instructions given by the

court were entirely consistent with both First Circuit precedent

and applicable constitutional requirements. See, e.g., United

States v . Sanborn,

8 8 , 491 (1st Cir. 1977) (“the

Government must show that the accomplice knew a dangerous weapon

would be used or at least that he was on notice of the likelihood

of its use.”) (emphasis supplied). See also United States v .

Spinney,

3 1 , 236 (1st Cir. 1995). Consequently, as to

that issue, petitioners cannot carry their burden with regard to

either prong of the Strickland test.

9 It is possible that petitioners are thinking of the higher standard of proof that applies to aiding and abetting the use of a firearm during a crime of violence, as charged in counts 6 and 1 2 . The jury instructions provided with regard to those crimes, however, properly informed the jury of the government’s heightened burden of proof. See Jury Instructions at 42-43. See generally United States v . Spinney,

3 1 , 236 (1st Cir. 1995) (observing that the “notice of likelihood” burden of proof imposed on the government in cases charging aiding and abetting armed bank robbery under

“stands in marked contrast - almost as point and counterpoint - to the ‘practical certainty’ formulation that courts have developed for assessing the shared knowledge requirement applicable to aiding and abetting firearms charges brought under

(c).”).

27 D. Other Challenges to Jury Instructions.

Petitioners’ remaining challenges to the jury instructions

(e.g., flawed definition of circumstantial evidence; the court’s

failure to instruct jury that the presumption of innocence

continues “throughout trial[,] right into final group

deliberations,” Shea’s petition at 3 8 ; the use of topical

headings in written instructions) are patently frivolous and

without merit. As such, they fail to constitute a viable basis

for habeas relief.

IV. Ground Four - Alleged Brady Violations.

As their fourth asserted ground for habeas relief,

petitioners say the prosecution committed several Brady

violations, by failing to provide them with exculpatory material

allegedly in the possession of the government. See generally

Brady v . Maryland,

(1963). Specifically, petitioners

say they were not provided with (and counsel did not adequately

seek production of) the following:

1. “The government’s National Crime Information Center (NCIC), or other agency, computer printout of nationwide similar modus operandi major robbery suspects or robbery crews.”

28 2. “The complete unredacted and unedited call- i n , informant or other tips file, reports, 302’s, documents on other suspected perpetrators for both Seabrook and Hudson robberies, with all follow-up other suspect investigation reports (to show inept, bungling, biased, and incomplete investigation of other suspects).”

3. The complete terms of the government’s deal with defendant-turned-cooperating-witness John Burke.

Shea’s petition at 44-47. As the Supreme Court has observed,

“There are three components of a true Brady violation: The

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued.” Strickler v .

Greene,

(1999). See also Giglio v . United

States,

(1972).

As to the government’s alleged failure to disclose the terms

of its “agreement” with John Burke, that issue was fully

addressed in petitioners’ motion for a new trial and again on

appeal. See Shea,

. See also United States v .

Burke, C r . N o . 96-50-1-6-M (D.N.H. Jan. 4 , 1999) (court’s order

29 on petitioners’ motion for a new trial). As to the government’s

alleged failure to provide NCIC reports on similar crimes,

petitioners have failed to establish that such information even

falls within the scope of Brady - that i s , that the evidence

allegedly suppressed was in any way exculpatory or that it might

constitute impeachment evidence. Moreover, petitioners have not

shown how such information might be “material.” In other words,

petitioners have failed to show that the government’s alleged

suppression of the evidence in question resulted in an unfair

trial, understood as one that produced a verdict that is not

worthy of confidence. See Kyles v . Whitley,

(1995). See generally

As the court of appeals observed, “[t]he evidence against

[petitioners] was substantial and rested on a number of

witnesses, much forensic evidence, and a series of admissions and

co-conspirator statements.” Shea,

. The

possibilities that petitioners might have been able to use the

allegedly suppressed materials to suggest that other criminals

committed the crimes with which they were charged, or that they

might have more effectively cross-examined Burke with the terms

30 of his “agreement” with the government, would not have changed

the outcome of their trial, nor do those remote possibilities

undermine confidence in the jury’s verdict to any degree at all.

See

Consequently, petitioners are not entitled to habeas

relief with respect to their claim that counsel was ineffective

for having failed to adequately pursue those issues.

V. Grounds Five and Six - Evidentiary Rulings.

Finally, petitioners point to several alleged errors in the

court’s jury instructions and assert that certain co-conspirator

statements were improperly admitted into evidence, in violation

of their rights under the Confrontation Clause. Those issues

were, however, raised, addressed, and resolved against

petitioners on appeal. See Shea,

(hearsay

issues) and 672-73 (jury instructions/Apprendi issues).

Petitioners have failed to demonstrate that those issues may be

relitigated in the context of their habeas petitions. See, e.g.,

Conley,

at *4 (“Claims that previously have been

addressed on direct review, however, may not be readjudicated

collaterally under § 2255 absent equitable considerations, such

as actual innocence or cause and prejudice.”).

31 Unique Grounds for Relief Advanced by Stephen Burke

I. Sufficiency of the Evidence - RICO Conspiracy.

As his first independent ground for habeas relief, Burke

asserts that, with regard to the RICO conspiracy charge, “there

is no evidence which supports a finding of an ‘enterprise.’”

Burke’s petition at 4 3 . That issue was, however, resolved

against him on appeal, Shea,

, and he has failed

to show that he may relitigate that claim in the context of his

habeas petition.

II. Apprendi and the Carjacking Conviction.

As with his claim regarding the RICO conspiracy count,

Burke’s second ground for habeas relief - an alleged

Jones/Apprendi violation - was fully litigated on appeal. The

court of appeals concluded that:

In retrospect, the failure to instruct on the “if death results” requirement was “error” under Jones, but it was patently harmless. The government introduced at trial photographs of the dead guards and testimony from the state’s assistant deputy medical examiner, who participated in and testified about the autopsies. Witnesses testified that each of the four defendants had admitted that the guards were killed during the robbery, and the defendants did not contest the point. [Consequently], we conclude “beyond a reasonable doubt that the omitted element was uncontested and supported

32 by overwhelming evidence,” so the error in instruction was “harmless.”

Shea,

(citations omitted).

Burke’s remaining claims (e.g., the court lacked subject

matter jurisdiction; other insufficiency of the evidence claims,

previously resolved on appeal; etc.) are without merit and

warrant little discussion, beyond noting that the record

conclusively shows that Burke is not entitled to habeas relief on

the grounds advanced.

Unique Grounds for Relief Advanced by Patrick McGonagle

Patrick McGonagle also asserts an independent basis for

habeas relief. He says he was prejudiced by ineffective

assistance of counsel (both at sentencing and on appeal), when,

pursuant to section 2B3.1(c)(1) of the United States Sentencing

Guidelines (1996 ed.), 1 0 6 points were added to his offense level

because a victim was killed during the course of the Hudson

armored car robbery “under circumstances that would constitute

10 Unless specifically noted to the contrary, all references are to the 1996 edition of the United States Sentencing Guidelines.

33 murder under

.”

Because of that cross-

reference, McGonagle’s total offense level was increased from 37

to 4 3 , the base offense level for first degree murder (though the

court subsequently granted McGonagle a downward departure to

level 4 0 , based upon his comparatively lesser culpability for the

murders).

McGonagle was convicted on the following counts in the

redacted second superceding indictment: count 3 (conspiracy to

commit armed robberies); count 8 (the Hudson bank/armored car

robbery); count 9 (conspiracy to commit the Hudson robbery); and

count 10 (robbery). He was, however, acquitted on count 1 1 ,

which charged that he committed (or aided and abetted others in

committing) carjacking, by using force, violence, and

intimidation to take an armored car from the guards who were

subsequently murdered.

The thrust of McGonagle’s argument is that a defendant

“cannot be held liable at sentencing for first-degree murder when

he doesn’t kill, intend to kill, and is not at the scene of the

crime.” McGonagle’s petition at 6. He plausibly infers from the

34 fact that the jury acquitted him on the carjacking count that it

concluded he was not present at the scene of the Hudson robbery.

Consequently, he says:

In this particular case, the jury found - as the Court took note - that Petitioner was not at the scene of the crime. He did not participate in any killing, and there wasn’t any evidence that killing was part of the robbery plan. Moreover, under the facts of this case, it must be recalled that Petitioner’s absence from the scene or a specific plan to kill denied him an opportunity to prevent the killings - obviously the reason behind not holding a person liable for first- degree murder when he’s neither present at the scene, does not intend to kill, nor when killing is not part of the robbery plan.

Id. at 6-7. McGonagle did not raise this issue on appeal. See

Shea,

(“In a pure sentencing issue, O’Halloran

and three other defendants (all except McGonagle) object to the

court’s computation of their sentences insofar as the court

relied on a cross-reference to the sentencing guideline for

first-degree murder.”). Accordingly, he advances the issue now

in the context of an ineffective assistance of counsel claim,

saying counsel should have, but failed to raise the issue on

appeal. As a result of counsel’s allegedly deficient

performance, McGonagle says his “rights under the Due Process,

35 Equal Protection, and Cruel and Unusual clauses of the U.S.

Constitution” have been violated. McGonagle’s Petition at 3 .

The government has, inexplicably, failed to respond to

McGonagle’s petition (notwithstanding the fact that he has

repeatedly pointed out the lack of any government objection).

Nevertheless, McGonagle’s petition necessarily fails because,

even if his counsel had raised the issue on appeal, McGonagle

would not have prevailed. Therefore, the “error” by counsel (if

any) was entirely harmless. The court’s application of U.S.S.G.

§ 2A1.1 (pursuant to the cross-reference provision in U.S.S.G. §

2B3.1(c)(1)) to McGonagle was legally correct and did not result

in the violation of any of his constitutionally protected rights.

As the court observed at McGonagle’s sentencing hearing, he

was convicted o f , among other things, conspiracy to commit the

Hudson armored car robbery, and the Hudson armored car robbery

itself. During the course of that armed robbery, two victims

were “killed under circumstances that would constitute murder

under

.” U.S.S.G. § 2B3.1(c)(1). It follows

that application of the first-degree murder guideline was both

36 correct and appropriate. See generally Transcript of McGonagle’s

sentencing (May 8 , 1998) at 3 1 . But, because, the court agreed

that McGonagle did not share the same degree of culpability as

his co-defendants, it departed downward three levels.

I agree with M r . Kenna [counsel for McGonagle] to the extent that I believe the jury necessarily found that Mr. McGonagle’s role was not of the same degree of culpability and [he] may not have been at the scene [of the murders], although I agree with [the government] that’s an open issue. But for purposes of sentencing, I’m going to accept what I believe to be the jury’s determination that M r . McGonagle was not at the scene of the actual carjacking, and therefore, did not knowingly or intentionally kill either of the guards himself.

Id. at 6 5 . See also U.S.S.G. § 2A1.1, application note 1 .

While the court accepted, for sentencing purposes, the fact

that McGonagle was not present at the scene of the murders, that

does not render application of the first-degree murder guideline

unconstitutional or otherwise unlawful. As the Court of Appeals

for the Fifth Circuit has observed:

The English common law provided that one who caused another’s death while committing or attempting to commit a felony was guilty of murder even though he did not intend to kill the deceased. Section 1111(a)

37 applies the felony murder rule to arson and other enumerated felonies.

United States v . El-Zoubi,

4 2 , 449 (5th Cir. 1993)

(citation omitted). See also United States v . Tham,

(11th Cir. 1997). Included in the “other enumerated

felonies” referenced by the Fifth Circuit are robbery and

attempted robbery.

(a). See also U.S.S.G. §

2A1.1, application note 1 . “Proof of premeditation or

deliberation is not required under the felony murder component of

§ 1111.” El-Zoubi,

. Nor need the defendant even

be present at the scene of the crime in order to be liable under

the felony murder component of § 1111(a). See United States v .

Pearson,

(10th Cir.) (cross-reference to § 2A1.1

was properly applied to defendant who drove the getaway car in a

robbery during which a victim was fatally shot), cert. denied,

(2000); Tham,

(cross-reference

to § 2A1.1 was properly applied to defendant who dropped co-

conspirators off at scene of arson that resulted in death of one

of the co-conspirators); El-Zoubi,

(district

court should have applied cross-reference to § 2A1.1 to defendant

38 who paid his nephew to commit arson, during the course of which

the nephew died).

In short, because he was convicted of the Hudson robbery,

the fact that McGonagle may well have been absent from the actual

scene of the murders that occurred during the course of that

crime does not render application of the cross-reference to

U.S.S.G. § 2A1.1 unconstitutional or otherwise unlawful. His

comparatively lesser role in those murders was properly taken

into account, though it need not have been, when the court

granted him a discretionary downward departure from the otherwise

applicable offense level. Consequently, the record conclusively

reveals that McGonagle is not entitled to habeas relief on the

ground advanced.

Petitioners’ Motions to Amend to Add Brady Claims

Petitioners Shea, McDonald, O’Halloran, and Burke, have all

filed identical motions seeking leave to amend their habeas

petitions by adding new Brady and ineffective assistance of

39 counsel claims.11 Specifically, petitioners seek to add claims

asserting that their counsel was constitutionally deficient for

failing to request/obtain from the government additional Brady

material - that i s , evidence that might have been used to impeach

John Ferguson, one of the government’s cooperating witnesses in

petitioners’ trial. The government objects, saying petitioners’

motions are untimely, insofar as they were not filed within the

one year limitations period imposed by § 2255.

Several appellate courts have addressed this issue,

concluding that, notwithstanding the one year limitations period

imposed by the Antiterrorism and Effective Death Penalty Act, a

timely petition filed under § 2255 may be amended under the terms

of Rule 15 of the Federal Rules of Civil Procedure. See, e.g.,

United States v . Hicks,

(D.C. Cir. 2002); United

States v . Espinoza-Saenz,

(10th Cir. 2000);

Davenport v . United States,

(11th Cir. 2000), cert.

denied,

(2001). Consequently, despite the fact that

petitioners’ motions to amend were filed outside the applicable

11 As before, the court will also assume that petitioner Patrick McGonagle has properly joined in the motions advanced by the other petitioners.

40 one year limitations period, they may still be allowed if

petitioners can show that they are permitted by Rule 1 5 . Under

that rule, an amendment “relates back” to the date of the

original pleading when “the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

pleading.” Fed. R. Civ. P. 15(c).

The Court of Appeals for the District of Columbia Circuit

recently considered the circumstances under which Rule 15 might

properly be applied to a habeas petition, holding:

Although Rule 15(c) could be read to mean that the relevant “occurrence” is the claimant’s trial and sentencing, this interpretation has been resisted, and with good reason. In most cases, a prisoner’s claims for collateral relief will arise out of the same criminal conviction; therefore, if the defendant’s trial and sentencing are construed to be the “occurrence,” virtually any purported amendment will relate back. Such a result would be difficult to square with Congress’ decision to expedite collateral attacks by placing stringent time restrictions on § 2255 motions.

Therefore, like our sister circuits, we agree that Rule 15(c) does not apply where the prisoner’s proposed amendment makes claims or is based on occurrences totally separate and distinct, in both time and type from those raised in his original motion.

41 Hicks,

(citations and internal quotation marks

omitted). See also Pruitt v . United States,

(11th Cir. 2001) (holding that Rule 15 does apply to petitions

filed under § 2255, but concluding that ”while Rule 15(c)

contemplates that parties may correct technical deficiencies or

expand facts alleged in the original pleading, it does not permit

an entirely different transaction to be alleged by amendment.”);

Davenport,

(adopting rule articulated in other

circuits, which provides that “under Rule 15(c), the untimely

claim must have more in common with the timely filed claim than

the mere fact that they arose out of the same trial and

sentencing proceedings. Instead, in order to relate back, the

untimely claim must have arisen from the same set of facts as the

timely filed claim, not from separate conduct or a separate

occurrence in both time and type.”) (citations and internal

quotation marks omitted).

In this case, the claim petitioners seek to add by amendment

is entirely novel and unrelated to any claims advanced in their

original petitions. That claim, as noted above, is based on

counsels’ alleged failure to obtain (and the government’s alleged

42 failure to provide) Brady materials that would have assisted them

in further impeaching the credibility of Ferguson. The only

claim even remotely similar to that and advanced in their

original petitions relates to the government’s alleged failure to

disclose the terms of its “deal” with John Burke. While both

claims are based upon alleged Brady violations and ineffective

assistance of counsel, those similarities are insufficient to

permit petitioners to avail themselves of the protections

afforded by Rule 1 5 . See, e.g., United States v . Craycraft,

(8th Cir. 1999) (holding that untimely claim of

ineffective assistance of counsel for not filing an appeal did

not relate back to timely claim of ineffective assistance of

counsel for not pursuing a downward departure); United States v .

Duffus,

(3rd Cir. 1999) (holding that untimely claim

of ineffective assistance for counsel’s failure to move to

suppress certain evidence did not relate back to timely

ineffective assistance of counsel claim based on counsel’s

failure to pursue insufficiency of evidence claim).

Consequently, petitioners’ motions to amend the original

petitions are necessarily denied as untimely.

43 Parenthetically, the court notes that even if the motions to

amend were not untimely, petitioners would still not be entitled

to habeas relief on the ground asserted. The government’s case

against petitioners was strong, defense counsel vigorously

challenged Ferguson’s credibility, effectively exposing likely

motives to lie, and the jury was well aware that Ferguson was a

“sullied witness,” and certainly no “choirboy.” Mastracchio v .

Vose,

9 0 , 604 (1st Cir. 2001). Moreover, the

additional impeachment value of the alleged Brady materials

referenced in petitioners’ motions to amend is relatively minor,

given the extent to which Ferguson was throughly cross-examined

and impeached by defense counsel. See generally Stephens v .

Hall,

1 0 , 218 (1st Cir. 2002) (“In weighing the

prejudicial effect of counsel’s errors, we must consider the

totality of the evidence before the . . . jury. A verdict or

conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record

support.”) (citations and internal quotation marks omitted);

Gonzalez-Soberal v . United States,

(1st Cir.

2001) (“Three factors need to be considered in this case in order

to make the [Strickland] prejudice determination. The first is

44 the strength of the government’s case against [defendant].

Second, we must evaluate the effectiveness of the presentation of

[defendant’s] defense absent the impeachment documents. Third,

we must consider the potential impeachment value of the two

documents in undermining the credibility of the government

witnesses.”). Consequently, even if petitioners were entitled to

amend their original habeas petitions, they could not carry their

burden with regard to the “prejudice” prong of the Strickland

test.

Conclusion

For the foregoing reasons, the court holds that the files

and records of the case conclusively show that petitioners are

not entitled to habeas corpus relief on any of the grounds

advanced. Accordingly, the following petitions for habeas relief

and ancillary motions are denied:

Patrick McGonagle, Civil N o . 02-73-M: Petition for Habeas Corpus (document n o . 1 )

45 Anthony Shea, Civil N o . 02-73-M: Petition for Habeas Corpus (document n o . 6 ) Motion for Appointment of Counsel (document n o . 16) Motion to Amend Habeas Petition (document n o . 17) Motion for Rule 6 Discovery (document n o . 21) Motion for Rule 6 Discovery (document n o . 24)

Matthew McDonald, Civil N o . 02-84-M: Petition for Habeas Corpus (document n o . 1 ) Motion for Appointment of Counsel (document n o . 7 ) Motion to Amend Habeas Petition (document n o . 14) Motion for Rule 6 Discovery (document n o . 17) Motion for Reconstruction Hearing (document n o . 23) Motion to Extend Time for Discovery (document n o . 25) Motion for Rulings on Pending Motions (document n o . 28)

Michael O’Halloran, Civil N o . 02-88-M: Petition for Habeas Corpus (document n o . 1 ) Motion for Appointment of Counsel (document n o . 8 ) Motion to Amend Habeas Petition (document n o . 16) Motion for Reconstruction Hearing (document n o . 21) Motion for Rule 6 Discovery (document n o . 23)

Stephen Burke, Civil N o . 02-90-M: Petition for Habeas Corpus (document n o . 1 ) Motion for Appointment of Counsel (document n o . 6 ) Motion to Amend Habeas Petition (document n o . 14) Motion for Reconstruction Hearing (document n o . 17)

The Clerk of Court shall enter judgment in each of the above-

referenced cases in accordance with the terms of this order and

close the cases.

46 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 2 3 , 2002

cc: Patrick J. McGonagle Anthony Shea Matthew McDonald Michael O’Halloran Stephen Burke Peter E . Papps, Esq.

47