Barresi v. Maloney, 00-2364.

• Decision Date: 23 July 2002
• Docket Number: No. 00-2364.,00-2364.
• Citation: 296 F.3d 48
• Parties: William A. BARRESI, II Petitioner, Appellant, v. Michael J. MALONEY, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

296 F.3d 48

William A. BARRESI, II Petitioner, Appellant, v. Michael J. MALONEY, Respondent, Appellee.

No. 00-2364.

United States Court of Appeals, First Circuit.

Heard April 1, 2002.

Decided July 23, 2002.

Kenneth G. Littman for appellant.

Linda A Wagner, Assistant Attorney General, with whom Thomas F. Reilly, Massachusetts Attorney General, was on brief for the appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and McAULIFFE,^* District Judge.

McAULIFFE, District Judge.

William A. Barresi, II, was convicted in Massachusetts of raping a child under sixteen years of age, Mass. Gen. Laws ch. 265, § 22A, and committing an indecent assault and battery on a child under fourteen years of age (the same child), id. § 13B. The Massachusetts Appeals Court affirmed his convictions, Commonwealth v. Barresi, 46 Mass.App.Ct. 907, 705 N.E.2d 639 (1999), and the Massachusetts Supreme Judicial Court ("SJC") denied, without opinion, his Application for Leave to Obtain Further Appellate Review (commonly referred to as an "ALOFAR"). Commonwealth v. Barresi, 429 Mass. 1106, 710 N.E.2d 604 (1999). Pursuant to 28 U.S.C. § 2254, Barresi then petitioned the United States District Court for the District of Massachusetts for habeas corpus relief. The district court dismissed the petition, holding that Barresi had not fairly presented his federal constitutional claims to the SJC and, therefore, had not exhausted available state court remedies. Although the issue is open to reasonable debate, because we conclude that Barresi did adequately present his federal claims, we reverse and remand the habeas petition for consideration on its merits.

I.

Prior to his criminal trial, Barresi filed a motion under the Commonwealth's Rape Shield Law, Mass. Gen. Laws ch. 233, § 21B, seeking leave to introduce evidence that his alleged sexual assault victim had tested positive for chlamydia, a sexually transmitted disease. Based upon those positive test results, as well as his own test results, which revealed that he had never been infected with any chlamydia organism, Barresi hoped to persuade the jury that he could not have repeatedly raped the complainant and, consequently, that her accusations against him were false.

Barresi also wanted to show that the complainant made up the rape and assault charges to deflect her mother's scorn. According to Barresi, when the young complainant realized her mother was about to discover that she had been sexually active (for perhaps as long as a year) with at least one, and possibly two or more, teenage boys, she fabricated the charges against Barresi to create a plausible diversionary explanation for her sexually transmitted disease. To support that theory of defense, Barresi sought to introduce evidence that the complainant reported the alleged sexual assaults to the police after she had had an argument with her mother, and then ran off to meet with one of the boys with whom she allegedly had an ongoing sexual relationship. Barresi implicitly suggested that at that meeting the two concocted the false rape charges against him, after which the complainant was taken to the police station where she reported the fabricated story to law enforcement officers.

A pretrial hearing was held on Barresi's motion for leave to introduce evidence related to the complainant's sexual history. At that hearing, Barresi presented a physician he intended to call as a medical expert at trial. Although the doctor was able to give a general explanation of chlamydia and its mode of transmission, he conceded that he had never actually treated patients with the disease, and that his understanding of it was based largely upon information he had gleaned from medical text books. In ruling that Barresi could not introduce the medical expert's testimony at trial, the presiding judge concluded that the doctor lacked sufficient knowledge to give an expert opinion about the incubation period of chlamydia, or the likelihood that a person who had intercourse with an infected partner might contract the disease. The trial judge also concluded that the Massachusetts Rape Shield Law precluded introduction of evidence concerning the complainant's prior sexual conduct with the teenage boy(s), notwithstanding Barresi's asserted intent to introduce that evidence solely to impeach her testimony, and not merely to establish that she was sexually promiscuous. Finally, the trial judge precluded Barresi from introducing testimony from two boys concerning a false accusation of rape the complainant had allegedly leveled against one of them.

Following a three day trial, the jury convicted Barresi on both counts. His appeal to the Massachusetts Appeals Court unambiguously asserted, among other things, that the trial court's refusal to allow him to introduce evidence of the complainant's prior sexual relationship with the teenage boy(s), as well as its refusal to allow testimony from his medical expert, violated his right to confront adverse witnesses, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. While it did not directly address Barresi's federal constitutional claims, the Commonwealth's intermediate appellate court ruled that the trial judge neither abused his discretion nor committed an error of law in excluding the challenged evidence. Barresi, 705 N.E.2d at 641. Accordingly, Barresi's convictions were affirmed.

Barresi filed a timely ALOFAR with the SJC, the essential thrust of which was that the trial court erred in its interpretation and application of the Massachusetts Rape Shield Law. Barresi did, however, at least allude to the federal constitutional issues he had pressed more forcefully before the intermediate appellate court. The SJC denied Barresi's ALOFAR without opinion.

Barresi then filed a petition for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, reiterating his claims that the trial court's evidentiary rulings violated his rights under the Sixth and Fourteenth Amendments. The Commonwealth moved to dismiss the petition, arguing that with regard to his federal constitutional claims, Barresi had failed to exhaust the remedies available to him in state court. The district court agreed, holding that because Barresi's ALOFAR did not fairly present his constitutional claims to the SJC, those claims were not exhausted. Therefore, Barresi's habeas petition was dismissed. We subsequently granted Barresi's application for a certificate of appealability, see generally Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), and this appeal followed.

II.

The merits of Barresi's habeas petition are not at issue, so we make no comment in that regard. The sole question presented here is a procedural one: whether the federal constitutional claims Barresi advances in his habeas petition were fairly and recognizably presented in his appeal to the SJC. That is, we must decide whether Barresi exhausted available state remedies as to those issues. Our review is de novo. See Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997).

Barring certain exceptional circumstances not present here, a habeas petitioner in state custody may not advance his or her constitutional claims in a federal forum unless and until the substance of those claims has been fairly presented to the state's highest court. This exhaustion requirement, codified at 28 U.S.C. §§ 2254(b) and (c), embodies principles of federal-state comity and is designed to provide state courts with an initial "opportunity to pass upon and correct alleged violations of [their] prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation and internal quotation marks omitted). The petitioner bears the heavy burden of demonstrating satisfaction of the exhaustion requirement. See Adelson, 131 F.3d at 262; Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir.1989). To carry that burden, the petitioner must show that "he tendered his federal claim [to the state's highest court] in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Casella v. Clemons, 207 F.3d 18, 20 (1st Cir.2000) (citations and internal quotation marks omitted).

The Supreme Court has made it clear that a federal claim is not exhausted merely because the facts that underlie it have been previously placed before the state's highest court. See Picard, 404 U.S. at 277, 92 S.Ct. 509. Importantly, however, a petitioner need not express his federal claims in precisely the same terms in both the state and federal courts. See, e.g., id. at 277-78, 92 S.Ct. 509 (holding that the claims advanced by a habeas petitioner before the state's highest court must be the "substantial equivalent" of those raised in his or her federal habeas petition).

We have noted that there are myriad ways in which a petitioner might satisfy his or her obligation to fairly present a federal constitutional issue to a state's highest court. They include:

(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.

Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.1987) (citations omitted). But the list developed in Gagne is merely illustrative; it does not purport to be exhaustive. So, for example, in Nadworny, we recognized that there "is yet another species of exhaustion which merits attention. An individual's claim, arising under and asserted in terms of state law, may, as a practical matter, be indistinguishable from one arising under federal law." 872 F.2d at 1099.

It necessarily follows that each case in which a petitioner is alleged to have inadequately presented his or her federal constitutional claims to the state's...