United States Court of Appeals

For the First Circuit

No. 03-1203

GEORGE CORREIA,

Petitioner, Appellant,

v.

TIMOTHY HALL AND THOMAS REILLY,

Respondents, Appellees.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

 

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

 

Leslie W. O'Brien for appellant.

Dean A. Mazzone, Assistant Attorney General, with whom Thomas

F. Reilly, Attorney General, was on brief for appellees.

 

April 16, 2004

 
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CYR, Senior Circuit Judge. George Correia appeals the

district court order which denied his petition for a writ of habeas

corpus, see 28 U.S.C. § 2254, in which he contended that a state

trial court judge violated due process by vindictively punishing

him for exercising his right to a jury trial on various criminal

charges. We affirm.

I

BACKGROUND

On September 8, 1995, petitioner asked a Boston-area car

dealership salesman for permission to test-drive a 1989 Corvette.

During the ensuing drive, Correia absconded with the vehicle. Four

days later, a Boston police officer saw Correia as he was driving

the Corvette in the Beacon Hill area. Unaware that the Corvette

was stolen, the officer pulled it over after noting that it had

neither a valid license plate nor a current inspection sticker. As

the officer approached the Corvette on foot, Correia abruptly sped

away from the scene, leading State and Boston police [hereinafter:

“police”] on a prolonged high-speed car chase on downtown Boston

streets and adjacent freeways. During the chase, Correia

recklessly drove the wrong way down one-way streets, crashed into

several other police and civilian vehicles, repeatedly refused

police demands to surrender at gunpoint, attempted to run over

several on-foot police officers, and finally managed to strike a

police officer with the vehicle. This vehicular rampage caused
1The trial court allowed the government's pretrial motion to

dismiss 20 of the 48 counts, and the jury eventually acquitted

Correia on 5 of the 6 counts charging assault and battery with a

vehicle, and 2 of the 6 counts charging assault with a vehicle.

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severe bruises and lacerations to a police officer, as well as

spinal injuries to a civilian automobile driver. 

In due course, Correia was indicted in Suffolk County

Superior Court on forty-eight counts: speeding (4 counts), driving

to endanger (4), driving with a suspended license (1), assault and

battery with a vehicle (6), assault with a vehicle (6), receiving

stolen goods (2), leaving the scene after causing personal injury

or vehicular damages (17), driving the wrong way on a one-way

street (2), and failing to stop for a police officer (6).

Prior to the jury trial, Correia informed the presiding

superior court judge that he might agree to plead guilty.

Whereupon the judge informed Correia that he probably would impose

a 5-to-7 year prison sentence should Correia enter a guilty plea.

However, shortly thereafter Correia elected to proceed to trial.

Finally, disregarding the court’s advice, Correia elected to

represent himself at trial.

Following trial, the jury convicted Correia on twenty-one

of the forty-eight counts: assault and battery with the Corvette

(1 count); assault with the Corvette (1); receiving stolen goods

(2); leaving the scene after causing personal injury or vehicle

damage (11); and failing to stop for a police officer (6).1 The
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trial judge denied Correia’s ensuing motions for a new trial, and

sentenced him to imprisonment for 12 to 17 years, well within the

sentencing range prescribed by statute.

The Massachusetts Appeals Court affirmed the convictions

and sentences in an unpublished opinion, and the Supreme Judicial

Court denied the ensuing application for further appellate review.

In February 2002, Correia submitted the instant habeas corpus

petition to the United States District Court for the District of

Massachusetts, which denied the requested relief and issued its

certificate of appealability. Correia now appeals from the

district court order denying the petition for habeas corpus.

II

DISCUSSION

Correia contends that the Massachusetts Appeals Court

unreasonably applied clearly established United States Supreme

Court precedent in rejecting his claim that the trial court

vindictively punished him for refusing to enter a guilty plea prior

to trial by imposing a 12-to-17 year prison term, rather than the

5-to-7 year term which would have been imposed had Correia entered

a guilty plea. As evidence of the alleged vindictiveness, Correia

relies upon (i) the large numerical differential between the

pretrial and post-trial sentencing ranges; (ii) the jury acquittals

on many of the more serious charges in the indictment; and (iii)

the comments made by the trial judge during trial, suggesting that
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the trial judge himself believed that Correia was guilty and that

the trial was a waste of judicial resources.

We review denials of habeas corpus relief de novo,

inquiring whether the state-court decision is “contrary to, or

involved an unreasonable application of, clearly established

[Supreme Court precedent].” 28 U.S.C. § 2254; see Williams v.

Taylor, 529 U.S. 362, 404-05 (2000). A state-court decision

contravenes the “unreasonable application” criterion when, though

it correctly identifies the pertinent United States Supreme Court

rule, its application to the particular facts of the case at bar is

objectively unreasonable. Id. at 409-10.

In affirming the conviction notwithstanding Correia's

"vindictive sentencing" claim, the Massachusetts Appeals Court

relied upon three grounds : (1) the trial court cited objective,

non-vindictive reasons for imposing a higher sentence following

trial; (2) the trial court neither stated nor implied that Correia

would receive a higher sentence if he did not plead guilty; and (3)

at no time did the trial court evince a belief that the trial was

a waste of judicial resources.

In the event a criminal defendant successfully appeals

his conviction and the same trial judge imposes a stiffer sentence

following a retrial, the presumption arises that the harsher

sentence was a product of judicial vindictiveness in response to

the defendant's rightful recourse to the appellate process; yet
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this presumption is rebuttable provided the record contains

objective evidence which adequately explains the more severe

sentence. See United States v. Goodwin, 457 U.S. 368, 373-74

(1982); North Carolina v. Pearce, 395 U.S. 711, 726 (1969); United

States v. Mena-Robles, 4 F.3d 1026, 1037 (1st Cir. 1993). 

The same presumption may arise when a criminal defendant

rejects a plea agreement – and with it the prospect of a more

lenient sentence – and elects instead to exercise his

constitutional right to a jury trial. See, e.g., Johnson v. Vose,

927 F.2d 10, 11 (1st Cir. 1991). The two situations differ, of

course, in that a higher sentence after a remand and retrial alters

a judge’s previously imposed punishment, whereas a higher sentence

after a failed plea bargain is not a retreat from a previously

imposed sentence, and as here, is likely to reflect additional

evidence adduced at trial and the loss of a discount for pleading

guilty.

In any event, as this presumption is designed to

safeguard against the risk of actual vindictiveness – as

distinguished from the mere fact that the sentencing court decided

to impose a harsher sentence following a trial or retrial – the

presumption “arises only in circumstances ‘in which there is a

“reasonable likelihood” that the increase in sentence is the

product of actual vindictiveness.’” Id. (citing Alabama v. Smith,

490 U.S. 794, 799 (1989)) (citations omitted; emphasis added).
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Absent such a "reasonable likelihood," the aforementioned

presumption is never triggered, and the defendant must instead

establish actual vindictiveness. See id.

The record in the instant case simply cannot support a

determination that the Massachusetts Appeals Court unreasonably

applied the pertinent legal principles. See Williams, 529 U.S. at

405. First, the mere fact that the post-verdict sentence exceeded

the "plea bargain" sentence by some seven to ten years is

insufficient, in and of itself, to indicate a reasonable likelihood

of actual vindictiveness. For one thing, unlike a verdict of

guilty, an admission of guilt properly warrants the sentencing

court’s consideration of a more lenient sentence than might

otherwise be imposed in appropriate response to the defendant’s

criminal conduct. See Smith, 490 U.S. at 802. Thus, the five-toseven year prison sentence proffered to Correia during the plea

bargaining process does not reflect a true assessment of Correia's

criminal culpability, in that it plainly included a substantial

discount for leniency.

As for the remaining aspect of the differential, normally

the sentencing court imposes a post-verdict sentence after

considering the evidence presented at trial. In contrast, a pleabargained sentence normally is predicated upon a more rudimentary

record of the alleged criminal conduct, such as the description in

the indictment, and/or a presentence report. See id. at 801.
2At the sentencing hearing, the judge stated:

For the record, I wish to make a statement because

the sentence imposed here is substantially greater than

the sentence discussed at the outset of this trial when

there was the prospect of a guilty plea. Since that

time, I’ve come to know the details of the crimes

involved here and the character of the defendant a lot

better than I knew when I would have been content with a

much lower sentence. In my wildest imagination I could

find it difficult to find a worse possible scenario for

the aftermath or the consequences of a stolen motor

vehicle. As I reviewed my notes, I counted over twenty

vehicles that were damaged, smashed into some way by the

operation of that vehicle that morning. It has got to be

miraculous that no one was killed as a result of this.

There was, however, one man seriously injured and he is

still suffering the consequences of the conduct of the

defendant that day. The conduct of the defendant on the

date in question evidenced an absolutely total disregard

for the lives of anyone and the property of everyone. In

the conduct of his acts that day he viciously attacked

any police officers trying to stop him. He was obviously

going to stop at nothing, or for nothing, I should say,

and ultimately forced the police to use gunfire to stop

him on the corner of Washington and Marginal. During the

conduct of the trial, he has demonstrated absolutely no

remorse for what has gone on that day. On the contrary,

he has converted himself from a perpetrator of serious

crimes to a victim of police brutality because of the

fact that he forced them to use gunfire to stop him on

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Indeed, the sentencing judge in this case adverted to this very

consideration in sentencing Correia, explicitly observing that both

the government’s graphic trial presentation regarding the sheer

recklessness of the Correia rampage, and Correia’s apparent lack of

remorse, see id. (“[T]he defendant’s conduct during trial may give

the judge insights into [the defendant’s] moral character and

suitability for rehabilitation.”), accounted in substantial part

for the decision to impose the harsher sentence.2
that occasion. I see no prospect of rehabilitation for

this defendant and consequently have sentenced him as I

have.

3Correia points solely to the trial judge’s pretrial

observation that Correia “practically wiped out half of the Boston

Police Department and the state troopers, according to the

charges.” (Emphasis added.) Although the quoted observation

plainly reflects a measure of hyperbole, it was neither made in the

presence of the jury nor purported to be a premature assessment of

Correia’s level of culpability, as distinguished from a recounting

of the known and undisputed consequences of Correia's conduct as

set forth in the indictment. See, e.g., Taylor v. Kincheloe, 920

F.2d 599, 608 (9th Cir. 1990) (finding trial judge's description of

charged offenses, as “execution style slayings,” not evidence of

vindictiveness, “since it is obvious that a judge may consider the

circumstances of the offense in making a sentencing decision, [and]

[Alabama v. Smith, 490 U.S. 798 (1989)] is founded on the notion

that this is exactly what we expect judges to do.”).

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Compared with the sparse information available to the

trial judge at the pretrial conference,3 consisting of little more

than a recitation of the charges set forth in the indictment, see

supra Section I, the trial record abundantly demonstrates not only

the gravity of the alleged criminal conduct, but the increased risk

of serious bodily harm to which Correia exposed not only the law

enforcement officers involved, but any hapless civilian who

happened to be in his way. Cf. Pearce, 395 U.S. at 723 (“A trial

judge is not constitutionally precluded, in other words, from

imposing a new sentence, whether greater or less than the original

sentence, in the light of events subsequent to the first trial that

may have thrown new light upon the defendant's ‘life, health,

habits, conduct, and mental and moral propensities.’”) (citation
4Correia further contends that the jury acquittals on seven of

the nine counts of assault and/or battery with a vehicle render the

trial judge’s post-verdict sentence vindictive. He maintains that

since the jury acquitted him of several charges that he assaulted

police officers, the trial court improperly considered that “[i[n

the conduct of his acts that day he viciously attacked any police

officers trying to stop him.” Correia devotes one conclusory

paragraph to this contention, and cites no supporting authority.

See United States v. Sanchez, 354 F.3d 70, 80 n.4 (1st Cir. 2004)

(noting that appellate argument raised in perfunctory manner is

waived). Although Massachusetts law arguably limits the sentencing

court's authority to consider “acquitted conduct” in imposing

sentence, see Commonwealth v. Goodwin, 605 N.E.2d 827, 830 (Mass.

1993); cf. United States v. Reyes-Echeverria, 345 F.3d 1, 7 (1st

Cir. 2003) (noting that court may sentence for acquitted conduct if

government proves it by preponderance of evidence), Correia was

convicted on two counts of assault and/or battery with the vehicle,

three counts of leaving the scene after causing personal injury,

and six counts of failure to stop for a police officer. Thus, it

was in no sense improper for the sentencing judge to point out that

Correia had “attacked” police officers. See Goodwin, 605 N.E.2d at

831 (“In making th[e] [sentencing] assessment, the judge may

consider many factors which would not be relevant at trial

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omitted). For instance, when a police officer initially approached

the vehicle Correia was driving – blatantly stolen some four days

earlier in the immediate presence of a car salesman – Correia

simply sped off onto busy downtown Boston streets, even driving the

wrong way down a one-way street. When heavy traffic blocked

Correia’s escape, just as another police officer approached

Correia's stationary vehicle on foot, Correia attempted to back the

car over the officer. Whereupon the officer’s partner fired shots

as Correia sped away, at times driving directly onto sidewalks

occupied by pedestrians. Shortly thereafter, Correia drove the

vehicle directly at and struck another police officer attempting to

stop him at an intersection,4 then collided with several other
including hearsay information about the defendant's character,

behavior, and background.”). 

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parked cars while attempting to extract himself from this same

encounter.

When yet another officer stopped him on Storrow Drive,

and approached Correia’s car with revolver drawn, Correia suddenly

reversed his vehicle into a Volvo, causing spinal injuries to its

driver. Ignoring the police officer’s orders to stop, Correia

promptly sped off over the center island separating Storrow Drive.

In so doing, he collided head-on with several vehicles in his path,

and attempted to run over two other policemen patrolling on foot,

who were forced to respond by firing their revolvers at the vehicle

which Correia was driving. While returning to downtown Boston,

Correia attempted to evade two police cruisers which were in

pursuit, drove into three cruisers positioned to road-block his

vehicle, then backed into a private vehicle, injuring its driver.

The police officers who converged upon the scene fired their

weapons at the Correia vehicle, wounding him. Undiscouraged,

Correia then proceeded to resist arrest. The police officers were

required to extract Correia forcibly from the vehicle in order to

effect the arrest. 

At trial, Correia tendered the defense that (i) he

initially fled not because he was driving a stolen vehicle, but

because he was operating without a license, and (ii) he continued
5For these same reasons, Correia’s reliance upon decisions

such as In re Thirteen Appeals Arising Out of San Juan Dupont Plaza

Hotel Fire, 56 F.3d 295 (1st Cir. 1995), is unavailing, given that

such decisions involved situations in which the sentencing judges

offered no rationale for imposing the harsher sentences. See id.

at 311 (“Though we have great confidence in [the district judge],

his silence on this subject leaves the award open to a perception

that appellants have been penalized for successfully prosecuting

their previous appeals.”) (emphasis added); United States v.

Mazzaferro, 865 F.2d 450, 458 (1st Cir. 1989) (“In the face of such

silence, we cannot rule out the possibility that the sentence was

imposed in retaliation for [defendant’s] insistence to stand

trial.”) (emphasis added). Also, Mazzaferro involved a direct

appeal from the conviction, as distinguished from a collateral

habeas corpus petition. Finally, in a habeas corpus proceeding,

factually similar decisions of the lower federal courts may

“inform” the habeas inquiry in some instances, but only Supreme

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his flight in self defense, when the police mistook him for another

armed fugitive and fired shots at him. However, the record

reflects that this "other fugitive" was black; whereas Correia is

white. 

In light of the demonstrated discrepancies between the

pretrial and post-verdict records, the Massachusetts Appeals Court

conclusion – that the harsher sentence imposed by the trial judge

was based upon factors other than vindictiveness – did not remotely

constitute an unreasonable application of United States Supreme

Court precedent. “[I]f it is reasonably clear that the judge

reshaped the impost merely as a means of bringing original

sentencing intentions to fruition after some new development had

intervened, a need for employing the Pearce presumption never

arises.” United States v. Pimienta-Redondo, 874 F.2d 9, 13 (1st

Cir. 1989).5
Court cases can serve as definitive benchmarks. See Rashad v.

Walsh, 300 F.3d 27, 35 (1st Cir. 2002).

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Furthermore, as Correia must concede, the sentencing

judge made no comment whatsoever which might even remotely imply

that he intended to impose a harsher post-verdict sentence in the

event the defendant did not accept a plea bargain. Cf., e.g.,

United States v. Crocker, 788 F.2d 802, 808 (1st Cir. 1986)

(finding that presumption arose because sentencing court stated:

“I think imposing upon the time and resources of the Court to try

a case which should not be tried is an imposition which deserves

consideration when it comes time for me to sentence and I will do

so.”); Longval v. Meachum, 693 F.2d 236, 237 (1st Cir. 1982) (same,

where judge stated: “I strongly suggest that you ask your client

to consider a plea, because, if the jury returns a verdict of

guilty, I might be disposed to impose a substantial sentence.”).

As the instant record contains no explicit or implicit threat of

any such impermissible linkage, no presumption of vindictiveness

was triggered, see Johnson, 927 F.2d at 12 (noting that such

linkage is “crucial in establishing a reasonable likelihood of

vindictiveness”); see also Mena-Robles, 4 F.3d at 1037, and the

burden to prove actual vindictiveness resided with Correia.

In an attempt to demonstrate objective evidence of

vindictiveness, Correia contends that the trial judge made comments

during trial which suggested pique at Correia’s decision to demand
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a jury trial. Quite the contrary, none of the comments even

remotely suggested that the court intended to punish Correia for

rejecting the plea agreement proffered prior to trial. In

excluding Correia’s “necessity” defense during the course of a

motion hearing, the trial judge stated: “You were a one-man

wrecking crew, and somehow this was justified in some way?” Rather

than utilizing this statement to convey his view of Correia’s

guilt, the trial judge plainly and correctly chose to express the

opinion that the far-fetched claim advanced by Correia – that he

simply eluded police in self defense – was undeserving of credence

by any rational factfinder. See United States v. Wasman, 700 F.2d

663, 666 (11th Cir. 1983) (noting that judge’s evidentiary rulings,

if correct on merits, normally are insufficient evidence of either

bias or vindictiveness), aff’d, 468 U.S. 559 (1984); Commonwealth

v. Pike, 701 N.E.2d 951, 958 (Mass. 1998) (noting that criminal

defendant not entitled to “necessity defense” instruction absent

competent evidence from which jury rationally could infer that he

had no effective legal alternative for avoiding an imminent harm,

other than to engage in criminal conduct for which he was charged).

In the other instance, the trial judge stated: “We are

not going to start at the beginning of this thing and go through

all the [police radio] transmissions, Mr. Correia, we have done

that already.” Far from an expression of displeasure that Correia

was trying his own case, the trial judge obviously was advising the
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pro se Correia – not an attorney – to refrain from introducing

plainly repetitive evidence, thereby needlessly wasting judicial

resources. See Commonwealth v. Jackson, 647 N.E.2d 401, 405 (Mass.

1995) (“[T]he judge [did not] prejudicially conduct the trial by

limiting the introduction of cumulative evidence and excluding

improper questions. No lenience is required on the part of the

judge or prosecutor toward a pro se defendant.”).

Finally, the court explained to Correia that the trial

missteps resulting from Correia’s decision to represent himself

were the product of his own voluntary decision, notwithstanding the

trial judge's contrary advice. See id. (“There is no judicial

obligation to protect a pro se defendant from his lack of legal

training.”). Rather than suggesting that the trial judge dissuaded

Correia from exercising his right to a jury trial, this observation

plainly suggests that the trial judge had encouraged Correia to go

to trial with representation by counsel.

As the Massachusetts Appeals Court reasonably could – and

did – conclude that the sentence imposed upon Correia comported

with the principles set forth in Smith, see 529 U.S. at 405, the

habeas corpus petition was properly denied.

Affirmed.