949 F.2d 490 (1st Cir. 1991), 90-1929, Tart v. Com. of Mass.

Docket Nº:90-1929.
Citation:949 F.2d 490
Party Name:Wesley P. TART, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Appellees.
Case Date:November 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 490

949 F.2d 490 (1st Cir. 1991)

Wesley P. TART, Appellant,



No. 90-1929.

United States Court of Appeals, First Circuit

November 15, 1991

        Heard Jan. 7, 1991.

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        Michael J. Traft, Boston, Mass., for appellant.

        Paula J. DeGiacomo, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for appellees.

        Before CAMPBELL and CYR, Circuit Judges, and POLLAK, [*] Senior District Judge.

        CYR, Circuit Judge.

        Wesley Tart, captain of a commercial fishing vessel and holder of a federal commercial fishing license, appeals district court orders rejecting various collateral challenges to his state court conviction for landing raw fish without a commercial fishing permit from the Commonwealth of Massachusetts. We affirm.



        In November 1986 an officer of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, while accompanied by an agent of the National Fishery Service, observed Tart's fishing vessel, "Jeromi," unloading raw fish at a Gloucester pier. Shortly after the officers identified themselves, Tart acceded to their request for permission to come aboard. When the officers asked to see his federal fishing license and a state fishing permit, Tart said that he did not believe he was required to obtain a state commercial fishing permit since he held a federal license. The officers seized Jeromi's cargo of raw fish under the authority of a Massachusetts statute which provides that "no person shall fish for or take fish for commercial purposes in the coastal waters, or land raw fish, whether frozen or unfrozen, in the commonwealth, for the purpose of sale unless he is a holder of a commercial fishing permit." Mass.Gen.L. ch. 130, § 80 (1991) (emphasis added). Five days later, the same state fisheries officer, accompanied by a local police officer and another fisheries department agent, once again observed Tart unloading raw fish. Tart was arrested after informing the officers that he had not obtained a Massachusetts commercial fishing permit as instructed.

        Following his state court conviction, Tart was sentenced to thirty days, all but seven days suspended, and fined fifty dollars. After Tart's conviction was affirmed on direct appeal to the Massachusetts Supreme Judicial Court ("SJC"), see Commonwealth v. Tart, 408 Mass. 249, 557 N.E.2d 1123 (1990), Tart filed a habeas corpus petition with the United States District Court for the District of Massachusetts. The district court dismissed the entire habeas petition for failure to exhaust state remedies with respect to one claim. Alternatively, the district court ruled that all six claims for relief were meritless.



  1. Procedural Bars to Federal Habeas Review

            1. Instruction on Burden of Proof of Licensure

    1. Exhaustion of State Remedies

              Tart first contends that the district court erroneously dismissed his habeas petition for failure to resort to available state remedies for challenging a state court jury instruction that Tart, rather than the Commonwealth, bore the burden of proof as to

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      whether Tart possessed a valid Massachusetts commercial fishing permit. 1

              A federal court may not issue a writ of habeas corpus "unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254; see also Ex parte

      Royall, 117 U.S. 241, 250-54, 6 S.Ct. 734, 739-41, 29 L.Ed. 868 (1886). Where a section 2254 petition pleads multiple federal claims, the federal character of any of which has not fairly been presented to the state courts, the federal court must dismiss the entire petition, including any exhausted claims. See Rose v. Lundy, 455 U.S. 509, 513-521, 102 S.Ct. 1198, 1200-05, 71 L.Ed.2d 379 (1982); Gagne v. Fair, 835 F.2d 6, 9 (1st Cir.1987); Dougan v. Ponte, 727 F.2d 199, 200 (1st Cir.1984). The petitioner then may elect to dismiss all unexhausted claims or seek their disposition in state court before proceeding under section 2254. See Rose, 455 U.S. at 520, 102 S.Ct. at 1204. 2

              Citing to our decision in Nadworny v. Fair, 872 F.2d 1093 (1st Cir.1989), Tart argues that he adequately alerted the state courts to the federal nature of his jury instruction challenge by citing several Massachusetts decisions whose holdings explicitly relied on federal caselaw. We have delineated the pertinent criteria for determining whether the state court fairly was alerted to the federal character of a constitutional claim. Among other criteria, we inquire whether the petitioner presented the state court with a claim whose substance must have alerted the state court to its federal character. See id. at 1097. Generally, citation to a state decision whose holding is prominently predicated on federal precedent is sufficient. See id. at 1103. 3 The "fair presentation" test is based in principles of comity, and accords appropriate respect to the States' prerogative "to develop a caselaw rich enough to sustain the protection of federal constitutional rights under the[ir] ... own precedent." Id. at 1101. The federal habeas forum must emphasize substance over form by scrutinizing the "essence" of the legal theory previously presented to the state court. See id.

              The brief presented to the SJC cited at least two SJC decisions explicitly and prominently predicated on federal constitutional caselaw. See Commonwealth v. Claudio, 405 Mass. 481, 541 N.E.2d 993 (1989) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)); Commonwealth v. Moreira, 385 Mass. 792, 434 N.E.2d 196 (1982) (citing Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); McInerney v. Berman, 473 F.Supp. 187 (D.Mass.1979), aff'd, 621 F.2d 20 (1st Cir.1980), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980)).

              The Commonwealth proposes two bases for disputing the sufficiency of Tart's presentation to the SJC. First, the facts in both SJC cases, Claudio and Moreira,

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      were so dissimilar from the present case that the SJC was not fairly alerted to their bearing on petitioner's federal constitutional claim, particularly since both cases concerned state statutes governing the presumptive effect a jury must accord laboratory tests for detecting alcohol and controlled substances, whereas the instant case concerns the burden of proving licensure.

              We examine the theory underlying petitioner's constitutional claim in order to determine whether Claudio and Moreira reasonably should have alerted the SJC to the essential federal constitutional tenets relied on in Tart's section 2254 petition; namely, the federal due process implications of a defendant's right to require the State to prove each element of the criminal charge beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 361-362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), and the federal constitutional limitations on State legislative power to define a crime so as to shift to the criminal defendant the burden of proof relating to an essential element of the crime. See Mullaney v. Wilbur, 421 U.S. 684, 703-704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (state may not transfer to defendant the burden of proving that he did not act in heat of passion on sudden provocation, since historical trend treats lack of justification as element of crime).

              The following Massachusetts statute provided the basis for the state court instruction to the Tart jury:

      A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.

              Mass.Gen.L. ch. 278, § 7 (1981). Were the lack of a valid state fishing permit an essential "element" of the criminal offense defined in section 80, the presumption prescribed in the Massachusetts statute might indeed be found infirm on federal due process grounds, as were the mandatory presumptions at issue in Claudio and Moreira.

              Second, the Commonwealth argues that Tart necessarily focused on state law grounds in presenting his earlier claim before the state courts, because the federal cases cited in Claudio and Moreira offered Tart no prospect of prevailing on his federal constitutional claim. The district court apparently concluded that the Massachusetts Constitution is more protective of Tart's due process rights in the present regard and, further, that it would be permissible under the Federal Constitution to shift the burden of proof so as to require Tart to establish possession of a state fishing permit. 4

              The proper inquiry under the exhaustion doctrine focuses on the content of the petitioner's presentation of the claim, with a view to whether the state court fairly was alerted to its federal character and whether the state court was afforded an opportunity to pass on the validity of the federal constitutional grounds underlying the claim. Neither the relative merit of a colorable federal claim vis-a-vis a parallel state law claim, nor the ultimate determination by...

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