Clements v. Maloney

• Citation: 485 F.3d 158
• Decision Date: 30 April 2007
• Docket Number: No. 05-2411.,05-2411.
• Parties: Jason CLEMENTS, Petitioner, Appellant, v. Michael T. MALONEY, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

485 F.3d 158

Jason CLEMENTS, Petitioner, Appellant, v. Michael T. MALONEY, Respondent, Appellee.

No. 05-2411.

United States Court of Appeals, First Circuit.

Heard October 4, 2006.

Decided April 30, 2007.

Rosemary Curran Scapicchio, for appellant.

Randall E. Ravitz, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Before LIPEZ, Circuit Judge, CYR, Senior Circuit Judge, and SINGAL,^* District Judge.

LIPEZ, Circuit Judge.

This case, involving the exhaustion requirement for habeas petitioners, requires us to examine some particulars of Massachusetts appellate procedure. Although we note the possibility that a portion of one of our prior decisions, Barresi v. Maloney, 296 F.3d 48 (1st Cir.2002), might no longer be valid in light of the Supreme Court's decision in Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004), we need not decide that question here. We conclude that the habeas petitioner in this case succeeded in exhausting one claim, which the district court found unexhausted, because of the then-existing Massachusetts Rules of Appellate Procedure. We also find, however, that another claim was properly deemed unexhausted by the district court because the state rules do not reach as far as the petitioner has suggested. We therefore affirm in part, reverse in part and remand as to one claim.

I.

A. State Court Proceedings

Because the specific facts of the crime underlying this case are not particularly relevant, we recount them only briefly, with the rebuttable presumption that factual findings by the state courts are correct. See 28 U.S.C. § 2254(e)(1). A more complete recitation of the facts can be found in the Massachusetts Supreme Judicial Court's ("SJC") opinion, Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55 (2002).

Clements was convicted of murdering Gregory Tillery in 1995. Tillery was shot on a street corner by a man wearing a hooded sweatshirt. An eyewitness identified Clements as the killer while testifying before the grand jury, but recanted that testimony at trial. The remainder of the evidence presented by the government was circumstantial. Clements was convicted on charges of murder in the second degree by joint venture, armed assault with intent to murder, and unlicensed possession of a gun. A co-defendant was acquitted.

Clements was given a life sentence, and he immediately appealed his convictions. His motion for a new trial was denied, and he appealed that decision as well. Clements made nine separate legal arguments to the Appeals Court, but his conviction was affirmed.¹ Thereafter, he filed an Application for Leave to Obtain Further Appellate Review (ALOFAR) with the SJC, raising only three legal claims.²

The SJC granted further appellate review, limited to the sufficiency claim, and affirmed the conviction. The SJC held that the recanted testimony was not the sole evidence of guilt, as Clements claimed, and that there was sufficient evidence to support the verdict. Clements' argument in support of this claim, both in his ALOFAR and his supplemental brief to the SJC, relied exclusively on state law.

B. Federal Court Proceedings

After the SJC rejected his direct appeal, Clements filed this habeas petition in the district court raising six legal claims. Three of them were the ones included in the ALOFAR. Two of the other three had been argued to the state Appeals Court. One had not previously been raised in any court. In response to the state's motion to dismiss, Clements argued that he had fully exhausted his state remedies on all six claims and that, if some claims were found unexhausted, he should be granted a stay in federal court so that he could return to state court to exhaust his remaining claims without fear of exceeding AEDPA's one-year statute of limitations. The district court carefully reviewed the claims Clements raised in his habeas petition, looking first at the claims that had been included in his ALOFAR and then at the claims excluded therefrom, and concluded that only the jury hold-out claim was exhausted because it was the only one "fairly presented by the petitioner for review as a federal claim."³

More specifically, the court found that both the sufficiency and the joint venture claims were presented to the SJC solely as state law claims and that they therefore had not been exhausted. As to both of these claims, the district court stated that no federal cases were cited and the ALOFAR did not articulate any federal issues in a recognizable way.

With respect to the claims raised in the habeas petition that had not appeared in the ALOFAR, the court found that three of these claims were presented to the Appeals Court as state law claims, while two were originally argued in reliance on both state and federal law. One claim appeared in the habeas petition, despite not being raised before either the Appeals Court or SJC.⁴ Clements argued that all of these claims had some basis in federal law, and that they ought to be found exhausted because a review of the brief filed with the Appeals Court revealed those federal bases. The district court found Clements' arguments meritless because the Supreme Court's decision in Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004), held that a claim cannot be exhausted if it is not presented directly to the state's highest court.

Finally, the district court rejected Clements' request for a stay of his habeas petition because the failure to exhaust was a result of "deliberate," "tactical" decisions by Clements' counsel. The court noted our decision in Neverson v. Bissonnette, 261 F.3d 120, 126 n. 3 (1st Cir.2001), which endorsed granting stays in certain cases, but concluded that this case did not merit a stay. The district court issued a provisional decision, allowing Clements to decide whether to proceed in federal court on his single exhausted claim (by voluntarily dismissing the other, unexhausted claims) or to dismiss his whole petition and return to state court.

Clements requested additional time to respond to the district court's provisional order, citing the Supreme Court's then-recent decision regarding "mixed" habeas petitions, Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).⁵ The request was granted and Clements subsequently informed the district court that he would not voluntarily dismiss any of his habeas claims (in order to proceed with the exhausted claim), and that he "fe[lt] strongly that the Supreme Court's decision [in] Rhines v. Weber supports his request for a[s]tay." The district court then dismissed Clements' petition pursuant to its earlier provisional order.

II.

The requirement that habeas petitioners exhaust all available state remedies was originally imposed by the Supreme Court in Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Subsequently, Congress codified the requirement as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(b)(1)(A), and also added a one year statute of limitations for the filing of habeas petitions, id. § 2244(d). Regardless of its source, the exhaustion requirement has long served to infuse into our habeas jurisprudence the interests of comity and federalism. See, e.g., Rose, 455 U.S. at 518-19, 102 S.Ct. 1198 (finding that "`it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,'" and that "[a] rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error") (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).

In order to exhaust a claim, the petitioner must "present the federal claim fairly and recognizably" to the state courts, meaning that he "must show that he tendered his federal 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.'" Casella v. Clemons, 207 F.3d 18, 20 (1st Cir.2000) (quoting Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997)). This means that "the legal theory [articulated] in the state and federal courts must be the same." Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.1987). This standard must be met, as a general rule, by "fairly present[ing]" a federal claim "within the four corners of the ALOFAR." Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir.1988). We have previously held that a habeas petitioner may accomplish this by doing any of the following: (1) citing a provision of the federal constitution; (2) presenting a federal constitutional claim in a manner that fairly alerts the state court to the federal nature of the claim; (3) citing federal constitutional precedents; or (4) claiming violation of a right specifically protected in the federal constitution. Gagne, 835 F.2d at 7. We have also noted that, in some situations, citations to state court decisions which rely on federal law or articulation of a state claim that is, "as a practical matter, [] indistinguishable from one arising under federal law," may suffice to satisfy the exhaustion requirement. Nadworny v. Fair, 872 F.2d 1093, 1099-1100 (1st Cir. 1989). It is, however, clearly inadequate to simply recite the facts underlying a state claim, where those facts might support either a federal or state claim. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988).

Clements contends that all six of his habeas claims have satisfied the exhaustion requirement because they were all presented to the Appeals Court with some citation or reference to federal cases. He explains that our precedent, Barresi v. Maloney 296 F.3d 48, 52 (1st Cir.2002), permitting us to review certain "backdrop" materials in some case...