Adelson v. DiPaola

• Decision Date: 06 November 1997
• Docket Number: No. 97-1536,97-1536
• Citation: 131 F.3d 259
• Parties: Leonard H. ADELSON, Petitioner, Appellant, v. James V. DIPAOLA, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 259

131 F.3d 259

Leonard H. ADELSON, Petitioner, Appellant, v. James V. DIPAOLA, Respondent, Appellee.

No. 97-1536.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1997.

Decided Dec. 12, 1997.

Kimberly Homan, with whom Robert L. Sheketoff, Sheketoff & Homan, Francis J. DiMento, and DiMento & Sullivan, Boston, MA, were on brief, for appellant.

William J. Meade, Assistant Attorney General, Commonwealth of Massachusetts, with whom Scott Harshbarger, Attorney General, Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

Petitioner-appellant Leonard H. Adelson hatched a plan to film bouts between Russian and American pugilists and market the resultant videotapes to Russian television stations. The undercapitalized venture was doomed from the opening bell. In the aftermath of its collapse, the Commonwealth of Massachusetts successfully prosecuted the petitioner on charges of larceny by check. After a fruitless pursuit of appellate remedies in the state courts, the petitioner sought habeas corpus relief in a federal forum, naming a state correctional official as the respondent. In an ore tenus decision, the district court dismissed the petition on the ground that it contained an unexhausted claim. The petitioner appeals. We affirm.

I. The Tale of the Tape

Early in 1993, the petitioner, a resident of Massachusetts, teamed up with Steven Eisner and Lawrence Meyers, both residents of Arizona, to promote and videotape prizefights between American and Russian boxers. The petitioner's responsibilities included underwriting the project, supplying Russian boxers, and marketing videotapes of the bouts, for which he would garner the lion's share of the anticipated profits. Eisner was to receive a monthly salary, reimbursed expenses, and a lesser share of the profits for recruiting the American pugilists and handling the logistics of the matches. Meyers agreed to film the fisticuffs in exchange for an up-front payment of $5,000 and a further payment in approximately the same amount plus expenses (e.g., editing costs), due upon production of commercially acceptable videotapes of a particular card of bouts.

In April 1993, the petitioner transmitted a check for $5,000 to Meyers as an initial payment and sent two checks for $2,500 and $7,500, respectively, to Eisner. All three checks were drawn on the petitioner's account at Cambridge Trust Company, a Massachusetts bank, and were intended to effect payment for services rendered or to be rendered in connection with boxing matches scheduled to take place in Laughlin, Nevada on April 28, 1993. The payees negotiated the checks. In due course, however, Cambridge Trust returned them, unhonored, explaining that the account lacked sufficient funds. The petitioner attributed the incident to a bank error and persuaded Eisner and Meyers to go forward with the promotion.

The three men met in Laughlin on April 28. At that time, the petitioner gave Meyers $3,000 in cash and promised to pay the balance of his fee by wire transfer the next day. Although that transfer never materialized, the petitioner did send a total of $13,000 to Eisner in mid-May. Eisner diverted $5,000 from this sum to Meyers to cover editing expenses. Despite the fact that he had not been paid in full, Meyers performed the editing work and delivered a single videotape to the petitioner in Massachusetts with the hope that the petitioner could sell it and thereby make good on the bounced checks. ¹ Meyers's hopes soon were dashed: the petitioner's efforts to market the tape in Russia proved unavailing and he thereafter turned a blind eye to the insistent demand letters forwarded by his erstwhile partners.

To make a tedious tale tolerably terse, Eisner and Meyers eventually called the three dishonored checks to the attention of the Massachusetts authorities. In turn, those financial instruments formed the predicate for three counts of larceny by check. See Mass. Gen. Laws ch. 266, § 37 (1990). Trial, conviction, and the imposition of a two-year prison sentence followed apace. ² The Massachusetts Appeals Court affirmed the conviction, see Commonwealth v. Adelson, 40 Mass.App.Ct. 585, 666 N.E.2d 167 (1996), and the Massachusetts Supreme Judicial Court (SJC) denied further appellate review. 423 Mass. 1105, 670 N.E.2d 966 (1996).

Undeterred by his lack of success in the early rounds, the petitioner applied for habeas corpus relief in the United States District Court for the District of Massachusetts. See 28 U.S.C. § 2254 (1994 & Supp. II 1996). He posited that the state trial judge's decision to withhold from the jury the question whether Massachusetts courts had subject matter jurisdiction relieved the prosecution of its burden to prove each element of the criminal charges and thus violated his right to due process of law under the Fourteenth Amendment. The petitioner bottomed this claim of constitutional error on an assertion that Massachusetts case law deems jurisdiction a substantive element of every criminal offense and that the prosecution therefore must prove its existence beyond a reasonable doubt.

The district court dismissed the petition without reaching the merits, concluding that Adelson inadequately presented his putative federal claim in the Massachusetts courts. Judge Woodlock did, however, grant a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b). This appeal ensued.

II. Exhaustion

In recognition of the state courts' important role in protecting constitutional rights, the exhaustion principle holds, in general, that a federal court will not entertain an application for habeas relief unless the petitioner first has fully exhausted his state remedies in respect to each and every claim contained within the application. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982). Although exhaustion is not a jurisdictional bar to federal habeas review of a state court conviction, it is "the disputatious sentry [that] patrols the pathways of comity" between the federal and state sovereigns. Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.1989). With few exceptions--none of which are applicable here--federal courts have enforced the exhaustion requirement consistently and rigorously. See, e.g., Rose, 455 U.S. at 518, 102 S.Ct. at 1203; Martens v. Shannon, 836 F.2d 715, 718 (1st Cir.1988). Thus, a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to the state courts the factual and legal bases of this federal claim. See Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971); Nadworny, 872 F.2d at 1098. To carry this burden, the petitioner must demonstrate that he tendered each claim "in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir.1994).

Although fair presentment of a claim is obligatory, there are myriad ways in which that phenomenon can be accomplished. See Nadworny, 872 F.2d at 1097-98 (noting at least five ways in which a habeas petitioner satisfactorily can present a federal claim to the state courts). But the flexibility inherent in this multi-channeled approach does not transform the exhaustion requirement into an empty formality. A federal court's calculation of the probability that a reasonable jurist would have discerned the federal question from a perusal of the petitioner's relevant state-court filings is not a matter of guesswork. Rather, that calculation is informed "by trappings--specific constitutional language, constitutional citation, appropriate federal precedent, substantive constitutional analogy, argument with no masking state-law character, and the like." Id. at 1101. The fewer the trappings that adorn a petitioner's state-court filings, the less likely that we will find his federal claim to have been exhausted.

Although these general principles provide a modicum of guidance, our de novo appellate review of a district court's dismissal of a habeas petition for want of exhaustion is necessarily case-specific. See id. at 1095. We turn, then, to the particulars of the case at hand.

In the district court, the petitioner, citing cases such as Schad v. Arizona, 501 U.S. 624, 638, 111 S.Ct. 2491, 2500, 115 L.Ed.2d 555 (1991), and In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), articulated his constitutional claim in the following terms: (1) Massachusetts case law defines jurisdiction as a substantive element of all criminal offenses; (2) due process requires the prosecution to prove all the substantive elements of an offense beyond a reasonable doubt; (3) and therefore, in a Massachusetts criminal case, the prosecution must prove jurisdiction beyond a reasonable doubt. ³ Given this syllogism, the petitioner posited that the state trial judge's preemption of the jurisdictional issue and his concomitant refusal to instruct the jury on it relieved the prosecution of its due-process-imposed burden to prove all the substantive elements of the charged crimes. This is an intriguing argument, and one that clearly states a federal constitutional claim. Whether the claim would have merit is, however, a different issue--and one which, absent exhaustion, we need not decide.

The fly in the ointment is that Adelson never pitched this argument to the Massachusetts courts. This is not to say that the argument is completely alien to the state court record. In his brief to the Massachusetts Appeals Court and in his unsuccessful application to the SJC for further appellate review, the petitioner set forth the factual underpinnings of his federal claim. But setting forth the factual underpinnings of a claim is insufficient, in and of itself, to constitute fair presentment of that claim. A habeas petitioner must also...