# United Stat es Court of Appeals For the First C ircuit

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, 2004-2- CYR, Senior Circuit Judge . George Correia app eals 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 judg e vi olated due process by vindictively punishing himfor exercising his right to a jury tria l 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 tha t the Corvette

was stole n, the off icer 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-sp eed ca r 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 a nd ci vilian vehicles, repeatedly refused police demands to surrender at gunpoint, attempted to run over several on-foo t poli ce officers, and finally managed to strike a police officer with the vehicle. This vehicu lar rampage caused1 The 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. -3- 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 sup erior 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 Co rrei a elected to proceed to trial. Finally, disrega rding 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); a ssault with the Corvette (1); receiving stolen goods (2); leaving the scene after causing personal injury o r v ehicle damage (11); and failing to stop for a police officer (6). 1 The-4-

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 la rge 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-5-

the trial judge himself believed that Correia was guilty and that the trial was a waste of judicial resources.

We revie w de nials of habeas corpus relief de novo , inqu iring whether the state-court decision is “contrary to, or involvedan 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 stat e-c ourt 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 f o llowing trial; (2) the trial court neither stated nor implied that Correia wouldreceive 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 t he event a criminal defendant successfully appeals his conviction and the same trial judge imposes a stiffer sentence following a re tria l, the presumption arises that the harsher sentence was a product of judicial v indict iveness in response to the defendant's rightful recourse to the appellate process; yet-6-

this presumption is rebuttable provided t he record contains

o bjective evidence which adequately explains the more sever e 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 afte r a failed plea bargain is not a retreat from a previously imposedsentence, and as here, is likely to reflect additional evidence adduced at trial and the loss of a discount for pleading guilty. In a ny event, as this presumption is designed to safeguard against the risk of actual vindictiv enes s – as distinguished from the mere fact that the sentencing court decided to impose a harsher sentence following a trial or retr ial – th e presumption “arises only in circumstances ‘in which there is a

“ reasonable li keli hood ” that the increase in sentence is the product of actual vindictiveness .’” Id. (citing Alabama v. Smith , 490 U.S. 794, 799 (1989)) ( cit ations omitted; emphasis added).-7-

Absent such a "reasonable likelihood," the aforementioned presum ptio n is never triggered, and the defendant must instead establish actual vindictiveness. See id.

The record in the instant case s imply cannot support a determination that the Massachusetts Appeals Court unreasonably appliedthe 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 adm ission 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 recordof the alleged criminal conduct, such as the description in the indictment, and/or a presentence report. See id. at 801.2 At 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 involvedhere and the character of the defendan t a lo t 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 t he c onduct 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 vic iously 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 himon 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 f rom a perpetrator of serious crimes to a victim of police brutality b eca use of the fact that he forced themto u se gunfire to stop him on -8- Indeed, the sentencing judge in this case adverted to this very consideration in sentencing Correia, explicitly observing that both the gov e rnment’s graphic trial presentation regarding the sheer recklessness of the Correia rampage, andCorreia’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. 2that occasion. I see no prospect of rehabilitation for

this defendant and consequently have sentenced him as I have.

3 Correia points solely to the trial judge’s pretrial observation that Correia “practically wiped out half of the Boston Police Department and the state troopers, acc ordi ng 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.2d599, 608 (9th Cir. 1990) (finding trial judge's description of chargedoff enses, 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. S mith , 490 U.S. 798 (1989)] is founded on the notion that this is exactly what we expect judges to do.”).

-9- 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 recordabundantly demonstrates not only the gravity of the alleged criminal conduct, but the increased risk of serious bodily harm to which Correia expose d not only the law enforcement officers involv ed, 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 defend ant's ‘life, health, habits, cond uct, and mental and moral propensities.’”) (citation4 Correia 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 content ion, 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 cour t' 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 convictedon two counts of assault and/or battery with the vehicle, three c ounts 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 rel evant at trial -10- 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, jus t 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 occupiedby pedestrians. Shortly thereafter, Correia drove the vehicle directly at and struck another police officer attempting to stop him a t an intersection, 4 then collided with several otherincluding hearsay information about the defendant's character,

behavior, and background.”). -11- parkedcars while attempting to extract himself from this same encounter. When yet another officer stopped h im o n Storrow Drive, andapproached 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 dri ving. While returning to downtown Boston, Correia attempted to evade two pol ice 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 offic ers 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.

A t trial, Correia tendered the defense that (i ) h e initially fled not because he was driving a stolen vehicle, but because he was operating without a license, and (ii) he continued5 For these sam e re asons, 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 p enal ized for successfully prosecuting their previous appeals.”) (emphasis added); United State s 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 imposedin retali ation for [defendant’s] insistence to stand trial.”) (emphasis added). Also, Mazzaferro inv olve d a direct appeal from the conviction, as dist inguished from a collateral habeas c orpus petition. Finally, in a habeas corpus proceeding, factually similar decisions of the lower federal courts may “in for m” the habeas inquiry in some instances, but only Supreme -12- his flight in self defense, when the police mistook him for another armedfugitive and fired shots at him. However, the record reflects that this "other fugitive" was black; whereas Correia is white. In light of the demonstrated d iscr epancies 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 appl i cation of United States Supreme Court precedent. “[I]f it is reasonably clear that the judge resha pedthe impost merely as a means of bringing origin a l sentencing intentions to fruition after some new d evel opment had intervened, a need for employing the Pearce presumption never arises.” United States v. Pimienta-Redondo , 874 F.2d 9, 13 (1st Cir. 1989). 5Court cases can serve as definitive benchmarks. See Rashad v.

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

-13- Furthermore, as Correia must concede, the sentencing judge made no comment whatso ever which might even remotely imply that he intended to impose a harsher post-verdict sentence in the

even t the defendant did not accept a plea bargain. Cf., e.g. , UnitedStates v. Crocker , 788 F.2d 802, 808 (1st Cir. 1986) (finding that presumption arose because senten cing court stated: “I think imposing upon the time and resources of the Court to try

a case which should not be trie d is an imposition which deserves consideration when it comes time for me to sentence and I will do so.”); Longval v. Meachum , 693 F.2d236, 237 (1st Cir. 1982) (same, where judge stated: “I strongly suggest that you ask your client to consider a plea, because, if the jury ret urns a verdict of guilty, I migh t 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 vi ndic tiveness

was triggered, see Johnson , 927 F.2d at 12 (noting that such linkage is “crucial in establishing a reasonable likel ihoo d of vind ict iveness”); 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 evidenc e o f vindictiveness, Correia contends that the trial judge made comments during trial which suggested pique at Correia’s decision to demand-14-

a jury trial. Quite th e contrary, none of the comments even remotely suggested tha t the court intended to punish Correia for rejecting the plea agreeme nt pro ffered prior to trial. In excl uding 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 th an uti lizing 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. Co rreia, 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-15-

pro se Correia – not an attorney – to re frai n from introducing plainly repetitive evidence, thereby needlessly wasting judicial

resources. See Commonwealth v. Jackson , 647 N.E.2d 401, 405 (Mass. 19 95) (“ [T]he judge [did not] prejudicially conduct the trial by limiting the introduction of cumu lative evidence and excluding improper questions. No lenie nce is required on the part of the judge or prosecutor toward a pro se defendant.”).

Finally, the court expla ined 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 fr om his lac k 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 – c onclude 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 .