Casella v. ME Correctional Center Superintendent, No. 99-1835

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch; BOWNES
• Citation: 207 F.3d 18
• Parties: (1st Cir. 2000) ANTHONY J. CASELLA, Plaintiff, Appellant, v. JAMES CLEMONS, MAINE CORRECTIONAL CENTER SUPERINTENDENT, Defendant, Appellee. Heard
• Docket Number: No. 99-1835
• Decision Date: 08 March 2000

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207 F.3d 18 (1st Cir. 2000) ANTHONY J. CASELLA, Plaintiff, Appellant,
v.
JAMES CLEMONS, MAINE CORRECTIONAL CENTER SUPERINTENDENT, Defendant,
Appellee. No. 99-1835 United States Court of Appeals for the First Circuit Heard March 8, 2000
Decided March 22, 2000

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Stuart W. Tisdale, with whom Mary A. Davis was on brief for appellant.

Leanne Robbin, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, was on brief for appellee.

Before Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is an appeal from the denial of a writ of habeas corpus. The sole issue is whether the petitioner fairly presented his federal claims in the state court proceedings. Finding that he did not, we affirm.

Petitioner Anthony Casella was convicted by a jury of twelve in the Superior Court of Maine of two counts of theft by unauthorized taking, in violation of 17-A M.R.S.A. § 353 (1983). Under Maine law, theft offenses are classified by the value of the property taken. See 17-A M.R.S.A. § 362 (1983). In order to classify the offense, Maine law allows for aggregation of the amounts of several thefts committed in the same scheme or course of conduct. See 17-A M.R.S.A. § 352(5)(E) (1983). It is this provision of Maine law, (the "aggregation statute") that gives rise to the current petition.

Count I of the indictment aggregated two transactions with one victim. Count II aggregated twelve victims who were all defrauded by the same scheme or course of conduct. The trial judge instructed the jury that "any verdict that you reach in this case . . . on each of the counts must be unanimous." Defense counsel objected, stating:

I would ask that [the jury] be reminded that on Count II if - if they are of the mind that Mr. Casella's guilty on Count II, they have to agree unanimously as to which victims were the subject of the theft. I mean, six can't think it was Vince May, and six think it was Bob Kirk. All 12 have to agree on the particular victim . . . .

The trial judge overruled the objection, and the jury returned a unanimous verdict of guilty on both counts. Casella then launched a two-fold attack on his conviction. First, he petitioned for state post-conviction review claiming ineffective assistance

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of counsel. Second, he moved for a new trial based on his objection to the jury instructions. The trial court denied both the petition for post-conviction review and the motion for new trial. Casella appealed his conviction (but not, apparently, the denial of his petition for post-conviction review) to the Maine Supreme Judicial Court ("SJC").

For our purposes, the relevant argument before the SJC was that

[t]he trial court erred by refusing the defense request for a specific unanimity instruction that the jurors had to be unanimous as to which, if any, transactions under Count II . . . were to be aggregated.

Casella grounded this argument in Article 1, Section 7 of the Maine Constitution, which grants a criminal defendant the right to a unanimous jury verdict. The SJC rejected this argument. See State v. Casella, Decision No. Mem. 98-39 (Maine, Feb. 24, 1998).

Having failed in his direct appeal, Casella filed a petition for a writ of habeas corpus in the federal district court under 28 U.S.C. § 2254 (1994 & Supp. II 1996). In this petition, Casella claimed that the Fourteenth Amendment's guarantee of due process granted him "the right not to be convicted except upon the substantial agreement of the jurors that the prosecution proved the elements of the offense beyond a reasonable doubt." The district court rejected the petition for failure to exhaust state remedies, see 28 U.S.C. § 2254(b), on the basis that Casella had not presented this argument to the state court. This...