Carsetti v. State of Me., 90-2032

• Decision Date: 06 March 1991
• Docket Number: No. 90-2032,90-2032
• Citation: 932 F.2d 1007
• Parties: Emil CARSETTI, Petitioner, Appellant, v. STATE OF MAINE, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1007

932 F.2d 1007

Emil CARSETTI, Petitioner, Appellant, v. STATE OF MAINE, Respondent, Appellee.

No. 90-2032.

United States Court of Appeals, First Circuit.

Heard March 6, 1991.

Decided May 14, 1991.

Peter W. Evans, Portland, Me., for petitioner, appellant.

Donald W. Macomber, Asst. Atty. Gen., Hallowell, Me., with whom Michael E. Carpenter, Atty. Gen., and Charles K. Leadbetter, Asst. Atty. Gen. for the State of Me., Augusta, Me., were on brief for appellee.

Before CAMPBELL, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Petitioner-appellant Emil Carsetti was convicted of Class B burglary and Class B theft and sentenced to ten years imprisonment. On direct appeal to the Maine Supreme Judicial Court, his convictions were affirmed. State v. Carsetti, 536 A.2d 1121 (Me.1988). His separate appeal of sentence to the Appellate Division of the Supreme Judicial Court was denied. Petitioner then initiated a post-conviction review proceeding in superior court pursuant to Me.Rev.Stat.Ann. tit. 15, Secs. 2121-2132, alleging ineffective assistance of counsel at his sentencing. Specifically, he claimed that his lawyer had failed to apprise the court of inaccuracies in his prior criminal record. After an evidentiary hearing and the submission of briefs, the superior court justice filed his decision denying the petition. Although he found that Carsetti's counsel had incompetently prepared for the sentencing hearing by failing to familiarize himself with the details of petitioner's criminal history, nonetheless, the superior court justice found that petitioner was not prejudiced as a result and therefore failed to satisfy the two-pronged test for ineffective assistance established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Petitioner thereafter sought review by filing a notice of appeal in the Maine Supreme Judicial Court pursuant to Me.Rev.Stat.Ann. tit. 15, Sec. 2131, requesting a certificate of probable cause to proceed with the appeal. In his supporting memorandum he challenged his sentence on two grounds. In addition to the claim of ineffective assistance of counsel, petitioner claimed that the inclusion of the erroneous information in his presentence report violated due process. The Chief Justice of the Supreme Judicial Court, acting for the court, issued a three-paragraph order denying the certificate.

Petitioner then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the federal district court of Maine, asserting the same two grounds for relief. After reviewing the record and the submissions of counsel, the district court issued an order dismissing the petition and denying the writ. The court stated that it found no merit in the ineffectiveness claim and that petitioner had procedurally defaulted on the due process claim by failing to present it in his state post-conviction proceeding in superior court. Applying Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), the court found petitioner had failed to show cause for the default and prejudice therefrom. A certificate of probable cause was granted by the district court, and this appeal followed.

PROCEDURAL DEFAULT

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, teaches that a procedural default in a state court acts as an adequate and independent state ground for the state court decision and immunizes that decision from habeas review in federal court. Id. at 81, 97 S.Ct. at 2503. To obtain federal habeas review notwithstanding the default, the petitioner must show cause for and prejudice from the default. Id. at 87, 97 S.Ct. at 2506. This, the district court found, petitioner did not do.

Although petitioner did not raise the due process claim in his petition for post-conviction review, he did include it in his application to the Maine Supreme Court for a certificate of probable cause to appeal the decision of the superior court denying his ineffective assistance claim. Under the United States Supreme Court's recent decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), a procedural default in state court does not bar federal habeas consideration of the claim "unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id. 109 S.Ct. at 1043 (citation omitted). See also Allen v. Commonwealth, 926 F.2d 74, 78 (1st Cir.1991) (applying Harris ). The first questions we must address, therefore, are whether petitioner Maine's procedure for post-conviction review requires that all grounds for review be set forth in the petition, or amended petition, filed in superior court. See Me.Rev.Stat.Ann. tit. 15 Sec. 2128.3 ("All grounds for relief ... shall be raised in a single post-conviction review action...."); Me.R.Crim.P. 67(e) (petition and amended petition "shall briefly state each reason for relief...."). The Supreme Court in analogous cases has generally refused to reach issues raised for the first time on appeal. See, e.g., State v. Mudie, 508 A.2d 119, 121 (Me.1986) (on appeal from post-trial motion challenging sentence, ground not raised below not considered); Lumsden v. State, 267 A.2d 649, 653 (Me.1970) (on appeal of state habeas corpus, issue not presented to single habeas justice will not be entertained for first time on appeal). But cf. Poitraw v. State, 322 A.2d 594, 596-97 (Me.1974) (applying exception, on state habeas appeal, to consider issue necessary to serve ends of substantial justice or prevent denial of fundamental rights). We conclude that the Maine Supreme Court could have found that petitioner defaulted his due process claim by not raising it in the lower state court.

procedurally defaulted his due process claim and whether the Maine Supreme Court clearly and expressly rested its judgment on the default.

While the Maine Supreme Court could have found the claim defaulted, the question, post Harris, is whether it did so, "clearly and expressly." ¹ We think that it did not. Its order denying the certificate of probable cause states in its entirety:

WHEREAS, pursuant to 15 M.R.S.A. Sec. 2131, the petitioner has filed a notice of appeal from the judgment entered by the Superior Court in the above-entitled post-conviction review proceeding, which notice by law constitutes a request for a certificate of probable cause; and

WHEREAS, upon consideration of the complete record of the proceedings in the Superior Court and any memorandum filed by the petitioner in support of his request for a certificate of probable cause, it is apparent that the appeal does not raise any issue worthy of being fully heard;

NOW, THEREFORE, it is ORDERED that a certificate of probable cause to proceed with the appeal be and is hereby denied. It is FURTHER ORDERED that a copy of this order, together with the complete record of the proceedings in the Superior Court now on file in this Court, be returned to the clerk of the Superior Court.

It is evident that the Maine Supreme Court denied the certificate of probable cause on the ground that the appeal did not "raise any issue worthy of being fully heard." Absent a clear and express statement from the Maine court that its decision with respect to the due process claim rested on petitioner's failure to raise it below, we hold that there is no state procedural bar to federal habeas review of the claim.

It is not enough, however, to find that petitioner's due process claim is not procedurally barred on grounds that he defaulted in state court. As the Court noted in Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982):

[T]he problem of waiver is separate from the question whether a state prisoner has exhausted state remedies. Section 2254(b) requires habeas applicants to exhaust those remedies "available in the courts of the State." This requirement, however, refers only to remedies still available at the time of the federal petition.

Further relief in the state courts, the Court acknowledged, was unavailable to the habeas petitioners in Isaac because of their procedural default; they had therefore "exhausted their state remedies...." Id. "[A] federal habeas court need not require that a federal claim be presented to a state Maine's procedure for post-conviction review of criminal judgments and sentences challenged as unlawful is set forth at Me.Rev.Stat.Ann. tit. 15, Secs. 2121-2132. Section 2128, "Waiver of grounds for relief," requires petitioners to show that relief is not unavailable due to waiver as provided in the subsections therein. Subsection 3, "Waiver of grounds not raised," provides:

                court if it is clear that the state court would hold the claim procedurally barred."    Harris v. Reed, 109 S.Ct. at 1043 n. 9 (citing Castille v. Peoples, 489 U.S. 346, 350-52, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989);  Teague v. Lane, 489 U.S. 288, 295-99, 109 S.Ct. 1060, 1067-68, 103 L.Ed.2d 334 (1989) (plurality opinion)).  We must therefore determine whether the Maine court would now hold the due process claim procedurally barred
                

All grounds for relief from a criminal judgment or from a post-sentencing proceeding shall be raised in a single post-conviction review action and any grounds not so raised are waived unless the State or Federal Constitution otherwise require or unless the court determines that the ground could not reasonably have been raised in an earlier action.

This provision has been interpreted by Maine's highest court to mean that absent evidence of "extenuating circumstance[s]," issues that could have been decided on a prior petition for post-conviction relief "are barred from subsequent consideration" in a later petition. McEachern v. State, 456 A.2d 886, 889 (Me.1983).

Petitioner has not shown that he could not have raised the due process challenge in his original petition. Instead, he claims...