Nadworny v. Fair

• Decision Date: 10 January 1989
• Docket Number: No. 88-1844,88-1844
• Citation: 872 F.2d 1093
• Parties: William NADWORNY, Petitioner, Appellant, v. Michael V. FAIR, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1093

872 F.2d 1093

57 USLW 2658

William NADWORNY, Petitioner, Appellant, v. Michael V. FAIR, Respondent, Appellee.

No. 88-1844.

United States Court of Appeals First Circuit.

Heard Jan. 10, 1989.

Decided April 20, 1989.

Charles M. Burnim, Marblehead, for petitioner, appellant.

Judy G. Zeprun, Asst. Atty. Gen., Criminal Bureau, with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

SELYA, Circuit Judge.

We revisit today an enduring riddle, now codified: the requirement that a state prisoner who petitions for federal habeas relief must have given the state courts first crack at the claims which he raises. ¹ The relative ease with which the requirement can be stated belies the morass of interpretive difficulties which often engulfs individual petitions.

Any reasoned explication of the modern-day state of the law must find its genesis in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The Court there announced what seemed a straightforward rule: before federal habeas jurisdiction can attach in the ordinary case, "the substance of a federal habeas corpus claim must first be presented to the state courts." Id. at 278, 92 S.Ct. at 513. Yet as direct as the Picard mandate might appear, it has proven to be elusive in its application. The more simply the guidelines are stated, it seems, the more perplexing the ensuing complications. And as the case before us illustrates, our articulation of the Picard principle has perhaps contributed to the surrounding miasma of doubt. We see this appeal as a vehicle for dispelling that uncertainty, at least in part--but we caution the expectant reader that, in this shadowy corner of the law, there is no epiphany. Despite what clarification we may offer, exhaustion determinations of this genre are by their very nature case-specific.

I

We begin by sketching the history of the litigation. The facts, exhaustively set out by the Massachusetts courts, bear no repetition. Sentenced to life imprisonment after his conviction for second degree murder in 1984, petitioner-appellant William Nadworny obtained direct appellate review in the Massachusetts Supreme Judicial Court (SJC), but to no avail; the SJC affirmed his conviction. Commonwealth v. Nadworny, 396 Mass. 342, 486 N.E.2d 675 (1985). The United States Supreme Court denied certiorari. 477 U.S. 904, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986).

Nadworny then petitioned the United States District Court for the District of Massachusetts for habeas redress. He named as respondent the Commissioner of Corrections (although we treat the Commonwealth as the real party in interest). Nadworny's habeas application contained a half-dozen grounds. The district judge, citing Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982) and Gagne v. Fair, 835 F.2d 6, 9 (1st Cir.1987), dismissed the complaint as mixing exhausted and unexhausted claims. Nadworny v. Fair, 685 F.Supp. 20, 23 (D.Mass.1988). Three of the claims, the judge wrote, "were not fairly presented to the state courts." Id. at 22. Two concerned Nadworny's trial: insufficiency of the evidence and failure to instruct on a lesser included offense (manslaughter). The last concerned his appeal: the SJC's alleged misapprehensions about the requested lesser included offense instruction. Rather than dropping these three claims and proceeding on the remainder, Nadworny appealed the dismissal.

In considering the appeal, we believe it appropriate first to investigate the underpinnings of the Great Writ and the rationale behind the exhaustion doctrine. We then turn to the "fair presentation" requirement and canvass the precedents which assist us in defining it. Next, we spell out what Picard exacts. That behind us, we shine the light of our understanding on the decision below.

II

Federal habeas is not an ordinary error-correcting writ. The judicial systems of this nation have many-layered, multifaceted instruments to ensure that the intricate procedures of criminal trial and appeal are available to individuals and are properly employed by government actors. Habeas corpus is superimposed on these systems and constitutes an extraordinary remedy, regularly sought but less regularly granted, protecting fundamental federal rights by correcting certain important abuses which everyday legal mechanisms have failed to prevent. See, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91, 93 S.Ct. 1123, 1127-28, 35 L.Ed.2d 443 (1973); cf. Lefkowitz v. Fair, 816 F.2d 17, 23-24 (1st Cir.1987). In the course of state criminal proceedings, federal rights are fully cognizable. See Irvin v. Dowd, 359 U.S. 394, 404, 79 S.Ct. 825, 831, 3 L.Ed.2d 900 (1959); Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). Federal habeas exists to rescue those in custody from the failure to apply federal rights, correctly or at all.

The junction where federal habeas power intersects with state criminal processes is enswathed in a mutuality of respect between sovereigns. It is that principle of comity which underlies the federal courts' unwillingness to adjudicate too hastily matters of fundamental federal significance arising out of state prosecutions. See Castille v. Peoples, --- U.S. ----, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 518-20, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 4, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam). Requiring that remedies be exhausted in state courts is merely comity's juridical tool, embodying the federal sovereign's respect for the state courts' capability to adjudicate federal rights. Although the federal courts, other conditions being met, will ultimately salve state error of constitutional dimension, the state must first be accorded the opportunity to protect the federally-assured interests of its criminal defendants. ²

III

In this area of federal-state relations, the exhaustion principle is the disputatious sentry which patrols the pathways of comity. A habeas petitioner must have presented both the factual and legal underpinnings of his claim to the state courts in order for us to find it exhausted. Picard, 404 U.S. at 276-77, 92 S.Ct. at 512-13; Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988); Gagne, 835 F.2d at 7. The fair presentation of facts has generated little ado. Rather, as a legion of our cases attest, it is the latter prong of the Picard postulate--the sufficiency with which the applicant's legal theory was presented--which has much bedeviled courts. See, e.g., Lanigan v. Maloney, 853 F.2d 40, 44 (1st Cir.1988); Mele v. Fitchburg District Court, 850 F.2d 817, 823 (1st Cir.1988); Martens, 836 F.2d at 717; Gagne, 835 F.2d at 7; Dyer v. Ponte, 749 F.2d 84, 86-87 (1st Cir.1984); Dougan v. Ponte, 727 F.2d 199, 200-01 (1st Cir.1984); Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir.1982). Though we believe our search for the legal substance of prior presentment has been relatively consistent, we acknowledge that our post-Picard peregrinations have employed a varied vocabulary to describe the applicable standard. In the interests of uniformity, we sense that the time has come to crystallize our meaning.

We are not the first appellate court--and doubtless will not be the last--to attempt to draw the borders of exhaustion more clearly. In Dougan, for example, we singled out Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), as "a laudable ... effort to give ... specific guidelines" to assist district courts in deciding whether federal claims had been fairly presented. Dougan, 727 F.2d at 201. While lauding the Second Circuit's effort, we did not adopt it wholesale. Compare id. with Daye, 696 F.2d at 194. We continue to believe that Daye provides valuable insights and mechanisms, but we remain wary of transmogrifying our substantive obligation to determine if a claim has been fairly presented into a set of mechanistic tests--especially since those tests were initially designed by the Daye court only as indicia of fair presentation. The proper search is a search for the heart of the matter, not for ritualistic formality. It was, after all, the Daye court itself which cautioned that its criteria meant "in essence, that in state court the nature of presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192.

In partial reliance on Daye, and borrowing as we deemed prudent from other authorities, we developed over time a quadripartite set of guidelines. Three aspects are easily explained and, if applicable, easily spotted. If, in state court, a petitioner has 1) cited a specific constitutional provision, 2) relied on federal constitutional precedent, or 3) claimed a determinate right that is constitutionally protected, he will have employed a mechanism which significantly eases any doubt that the state courts have been alerted to the federal issue. Gagne, 835 F.2d at 7; Dougan, 727 F.2d at 201. The only interpretative hazard inherent in these indices appears to be one of specificity. Thus, meeting a guideline must be understood not as the actual embodiment of fair presentation, but only as a possible proxy for it. For that reason, we have held that merely alleging the lack of a fair trial fails the particularity requirement of the third guideline. Dougan, 727 F.2d at 201; see also Gagne, 835 F.2d at 7 ("oblique" invocation of phrase "due process" not enough); Dyer, 749 F.2d at 86-87 ("cursory references" to due process and fourteenth amendment raise doubts about adequacy of presentment). Examples of specificity sufficient to put substantive flesh on the bones of these suggested modalities abound, amply demonstrating the ease with which alert counsel may fulfill the...