Richard J. Nadeau, Jr., Petitioner, Appellant, v. James Matesanz, Respondent, Appellee, 289 F.3d 13 (1st Cir. 2002)

Appellant Richard Nadeau appeals from the district court's denial of his petition for writ of habeas corpus. In March 1996, a Middlesex Superior Court jury convicted Nadeau of two counts of burglary, three counts of receiving stolen property, and one count of receiving a stolen motor vehicle. Appealing his convictions, Nadeau argued inter alia that he could not lawfully be convicted of both the burglary and the receiving of the stolen property. On April 2, 1999, the Massachusetts Appeals Court agreed with Nadeau's argument and vacated the possession of stolen property convictions but affirmed the remaining convictions. Commonwealth v. Nadeau, 46 Mass.App.Ct. 1121, 708 N.E.2d 154 (1999) (table).¹  On June 3, 1999, the Massachusetts Supreme Judicial Court denied Nadeau's application for further appellate review. Commonwealth v. Nadeau, 429 Mass. 1109, 712 N.E.2d 99 (1999) (table).

On June 25, 2000, Nadeau filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting three grounds of error. The district court denied the petition on August 21, 2001, but issued a certificate of appealability on September 18, 2001. In this appeal, Nadeau continues to press two purported grounds for relief. First, he maintains that the trial judge's instructions to the jury violated his constitutional right to present a defense and to have his guilt determined by a jury of his peers. Second, he contends that the Massachusetts Appeals Court erred when it chose merely to vacate the convictions for possession of stolen property, and should instead have ordered a new trial.²  Finding neither of these arguments meritorious, we affirm.

At trial, Nadeau's theory of defense consisted of two main components. First, he offered an alibi to account for his whereabouts during the times that the burglaries took place. Second, he argued that someone else, namely, his friend Michael Farese, had actually stolen the goods that the police recovered during the search of Farese's apartment, where Nadeau had been staying. When the time came to instruct the jury, the trial judge offered a standard charge regarding reasonable doubt. Specifically, the judge stated,

The question is, has the government proved beyond a reasonable doubt that Mr. Nadeau did certain things. He is the only defendant. You are not to focus on whether there were or should have been anyone else accused of these offenses. The question is, has the government proved beyond a reasonable doubt that Mr. Nadeau is guilty.

Nadeau objected to this instruction at trial, arguing that it was "confusing and contradictory" and, in essence, told the jury to ignore Nadeau's arguments regarding the possible culpability of Farese. On habeas review, the district court rejected Nadeau's claim that the trial court's failure to modify or correct the jury instructions violated his constitutional rights. Nadeau's appeal is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Therefore, in order to prevail, Nadeau must show that the state court decision was contrary to federal constitutional law or an unreasonable application of clearly established federal law as determined by the Supreme Court. Id. § 2254(d) (1). We review the district court's denial of habeas relief de novo. See Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir. 2002).

Nadeau has not offered any Supreme Court case that would suggest that the jury instructions were constitutionally inadequate. The reasonable doubt instruction offered by the trial judge closely parallels a model federal instruction,³  and the validity of comparable instructions has been upheld on previous occasions.⁴  Furthermore, we have not independently identified anything in the instruction chosen by the state court judge that runs afoul of the minimum constitutional requirements identified by the Supreme Court. Therefore, Nadeau's argument that the Appeals Court's affirmance of the trial court's instruction was an "unreasonable application" of Supreme Court precedent must fail.⁵  See 28 U.S.C. § 2254(d) (1).

We can likewise dispose of Nadeau's second argument without extensive discussion. Nadeau claims that the Supreme Court's decision in Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), requires the lower courts to grant a defendant a new trial when he is convicted of both a theft and possession of stolen property stemming from the same incident. In reaching the conclusion that Nadeau's argument was without merit, the Massachusetts Appeals Court relied upon Commonwealth v. Nascimento, 421 Mass. 677, 683-84, 659 N.E.2d 745, 749-50 (1996), in which the Massachusetts Supreme Judicial Court explained that Milanovich has been limited by the later Supreme Court opinion in United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976). Other courts of appeals have concurred in this assessment, and accordingly have cited Gaddis as the controlling Supreme Court pronouncement on this issue. See United States v. Brown, 996 F.2d 1049, 1055 (10th Cir. 1993) (citing cases from eight other circuits for the proposition that Milanovich has been de facto overruled by Gaddis).

In light of this overwhelming consensus, we are unconvinced that the decision of the Massachusetts Appeals Court "involved an unreasonable application of[] clearly established Federal law." 28 U.S.C. § 2254(d) (1).⁶  Therefore, we agree with the district court that this assignment of error lacks merit.

Accordingly, we affirm the district court's decision to dismiss the appellant's petition for habeas relief.