835 F.2d 6 (1st Cir. 1987), 87-1401, Gagne v. Fair

Docket Nº:87-1401.
Citation:835 F.2d 6
Party Name:Normand GAGNE, Petitioner, Appellant, v. Michael FAIR, Commissioner of Corrections, Respondent, Appellee.
Case Date:December 10, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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835 F.2d 6 (1st Cir. 1987)

Normand GAGNE, Petitioner, Appellant,


Michael FAIR, Commissioner of Corrections, Respondent, Appellee.

No. 87-1401.

United States Court of Appeals, First Circuit

December 10, 1987

Heard Oct. 7, 1987.

Stephen Hrones, by Appointment of the Court, with whom Hrones & Harwood, Boston, Mass., was on brief for petitioner.

Annette C. Benedetto, Asst. Atty. Gen., Crim. Bureau, with whom A. John Pappalardo, Deputy Atty. Gen., Chief, Crim. Bureau, and James M. Shannon, Atty. Gen., Boston, Mass., were on brief for appellee.

Before BOWNES, Circuit Judge, TIMBERS, [*] Senior Circuit Judge, and BREYER, Circuit Judge.

BOWNES, Circuit Judge.

Following a jury trial, petitioner Normand Gagne, and two codefendants were convicted of armed robbery, armed assault with intent to murder, attempted murder, assault and battery on a police officer, and assault and battery by means of a dangerous weapon. The Massachusetts Appeals Court reversed the convictions on the basis of errors at trial and remanded for a new trial. Commonwealth v. Gagnon, 16 Mass.App. 110, 449 N.E.2d 686 (1983). The Massachusetts Supreme Judicial Court granted a request from the Commonwealth for further appellate review and subsequently affirmed the convictions. Commonwealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d 1180 (1984). Gagne petitioned for a writ of habeas corpus in the United States District Court for the District of Massachusetts. After allowing Gagne to amend his petition, the district court denied the writ. This appeal followed. 1

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Gagne asserts that he was denied his constitutional right to a fair trial because the prosecutor improperly "vouched" for the credibility of a witness, Officer Petrick. Petitioner also points to other remarks made by the prosecutor during the trial, particularly to statements of personal opinion made by the prosecutor during his closing argument. Defense counsel objected only to the vouching for the credibility of Officer Petrick. Petitioner argues that in weighing the impact of the vouching statement, the court must examine the proceedings in their entirety, so that other comments, although unobjected to below, must be considered.

The Commonwealth contends here as it did below, that Gagne failed to exhaust his state remedies as required by 28 U.S.C. Sec. 2254(b) and (c). The district court found that the improprieties petitioner alleged could not support his claim of a constitutional violation and did not address the exhaustion issue. We agree with respondent that Gagne did not meet his initial obligation of exhausting remedies available to him in the Commonwealth courts and find that no exception applies. Under the applicable law, we must affirm the dismissal on exhaustion principles.

In order for the exhaustion requirement to be met, the petitioner must have fairly presented the substance of his federal habeas claim to the state court before seeking federal review. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971)); Dougan v. Ponte, 727 F.2d 199, 200 (1st Cir.1984). It is not enough that the same facts underly the claims. See Anderson, 459 U.S. at 6, 103 S.Ct. at 277; Picard, 404 U.S. at 276-77, 92 S.Ct. at 512-13. Rather, the legal theory in the state and federal courts must be the same. See Dougan, 727 F.2d at 201; Williams v. Holbrook, 691 F.2d 3, 9 (1st Cir.1982).

This does not mean that the petitioner must have expressed the theory in precisely the same terms. As we stated in Dougan v. Ponte, a petitioner may satisfy the exhaustion requirement by any of the following methods: (1) citing a specific provision of the Constitution; (2) presenting the substance of a federal constitutional claim in such manner that it likely alerted the state court to the claim's federal nature; (3) reliance on federal constitutional precedents; and (4) claiming a particular right specifically guaranteed by the Constitution. 727 F.2d at 201. See also Daye v. Attorney General of State of New York, 696 F.2d 186, 192-93 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).

After examining the extracts from the state court briefs provided us by the parties, we find no reference to any specific provision of the Constitution or to any right specifically guaranteed by the Constitution. The portion of the briefs dealing with prosecutorial misconduct contained only one oblique reference to constitutional rights. In the issue caption, the defendant alleged that he had been denied his "rights to a fair trial and due process of the law." The only other arguable reference was a repetition of the words "fair trial" within the body of the...

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