Belbin v. Picard
| Decision Date | 02 February 1972 |
| Docket Number | Misc. No. 535. |
| Citation | 454 F.2d 202 |
| Parties | Richard BELBIN, Petitioner-Appellant, v. Philip J. PICARD, Respondent-Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Walter Powers, Jr. Boston, Mass., for applicant on application for certificate of probable cause and memorandum in support thereof.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
On July 30, 1971, petitioner Belbin sought a writ of habeas corpus in the district court. He alleged that he had been convicted in the Massachusetts Superior Court of second degree murder upon a plea of guilty, but that his plea had not been voluntary, principally because of improper representation by counsel. Petitioner alleged that he had exhausted his state remedies by filing a petition for a writ of error in the state court. At a hearing before a magistrate, however, it appeared that while a single justice of the Supreme Judicial Court had filed a memorandum presaging a dismissal of the petition for lack of any constitutional error, no final order had been entered, let alone any appeal taken. The magistrate accordingly recommended that the federal habeas petition be dismissed for failure to exhaust state court remedies, and it was so dismissed by the district court.
Thereafter petitioner moved for reconsideration. The district court referred the case back to the magistrate by an order which the magistrate apparently construed as demanding consideration of the merits. On October 18, the magistrate submitted a further memorandum, again recommending that the petition be dismissed for failure of exhaustion, but also finding it to be without merit. On the same day the district court ordered the dismissal. Petitioner appealed, and in connection therewith sought of the district court a certificate of probable cause. On October 21, final judgment was entered in the state court dismissing his petition. The district court thereafter denied the certificate because of petitioner's failure to appeal the single justice's order to the full court, and because "no circumstances excusing failure to exhaust state remedies have been asserted." A certificate is now asked of us.
As of the date he filed his application in the federal court petitioner still had open to him remedies in the state court. We cannot too strongly condemn the practice of proceeding with post trial relief in two courts simultaneously, except in the unusual circumstance that the state court proceeding is not going ahead. Nor is counsel's present suggestion that the full court usually affirms single justice decisions a conceivable excuse for not exhausting rights by way of appeal. Boyd v. Oklahoma, 10 Cir., 1967, 375 F.2d 481; see Lucas v. People, 6 Cir., 1970, 420 F.2d 259. We recognize a limited exception where a particular question of law has already, and recently, been decided, see, e.g., Walsh v. Picard, 1 Cir., 1969, 446 F.2d 1209, 1210 n. 2, but that is not this case. No such circumstances are alleged here. The district court acted correctly in dismissing.
If we are right in assuming that as of now petitioner no longer, because of his failure to appeal the single justice's ruling, has available any state court remedy, it is permissible for him to file a new petition. United States ex rel. McBride v. Fay, 2 Cir., 1966, 370 F. 2d 547, 549; Puckett v. Ellis, E.D. Texas, 1958, 157 F.Supp. 923, 928-929. We do not,...
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Kanteles v. Wheelock
...by petitioner has recently been decided by the state court. Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.1973); Belbin v. Picard, 454 F.2d 202, 204 (1st Cir.1972); Walsh v. Picard, 446 F.2d 1209, 1210 n.2 (1st Cir.1971), cert. denied, 407 U.S. 921, 92 S.Ct. 2465, 32 L.Ed.2d 807 Petitione......
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O'Shea v. United States, 73-1333.
...(3), may hold a hearing; he may receive the state court record, and any undisputed documents the parties care to submit; Belbin v. Picard, 1 Cir., 1972, 454 F.2d 202; United States v. King, 1 Cir., 1973, 474 F.2d 402; he may receive stipulations. Mawson v. United States, 1 Cir., 1972, 463 F......
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Johnson v. Goguen
...is heard on appeal, and to require a new petition to be filed if state remedies are subsequently exhausted." (citing Belbin v. Picard, 454 F.2d 202, 204 (1st Cir. 1972))); Belbin, 454 F.2d at 204 ("It is the availability of state remedies at the time the application is filed . . . that is d......
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Santana v. Fenton
...remedies that were available at the time a petitioner sought relief in federal court are no longer open to him. See Belbin v. Picard, 454 F.2d 202, 203-04 (1st Cir. 1972) (dismissing petition where petitioner had state remedy of appeal available at time federal petition was filed, but becau......