Dickerson v. Walsh

• Citation: 750 F.2d 150
• Decision Date: 18 December 1984
• Docket Number: No. 84-1435,84-1435
• Parties: Lewis H. DICKERSON, Petitioner, Appellant, v. Robert WALSH, Superintendent, etc., Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 150

750 F.2d 150

Lewis H. DICKERSON, Petitioner, Appellant, v. Robert WALSH, Superintendent, etc., Respondent, Appellee.

No. 84-1435.

United States Court of Appeals, First Circuit.

Argued Oct. 2, 1984.

Decided Dec. 18, 1984.

John P. Osler, Boston, Mass., with whom Massachusetts Correctional Legal Services, Inc., Boston, Mass., was on brief, for petitioner, appellant.

Linda G. Katz, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley and Barbara A.H. Smith, Asst. Attys. Gen., Boston, Mass., were on brief, for respondent, appellee.

Before COFFIN, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Appellant, Lewis Dickerson, appeals an order entered on March 5, 1984, by the United States District Court for the District of Massachusetts dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982). The district court found petitioner's claim that Massachusetts' post-conviction review procedure violates the equal protection clause of the fourteenth amendment to be without merit. We dismiss the appeal for failure of the petitioner to exhaust his state remedies.

Procedural History

The petitioner, Lewis Dickerson, was convicted of first degree murder in September 1975. His conviction was reviewed by the Supreme Judicial Court of Massachusetts, Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977). One of the issues raised on appeal was a challenge to a portion of the jury instructions. The Supreme Judicial Court reviewed the claim and concluded that the instruction was erroneous but favored rather than prejudiced Dickerson. Because Dickerson had been convicted of a capital offense, ¹ the Supreme Judicial Court was also required by Mass.Gen.Laws Ann. ch. 278, Sec. 33E (West 1981) to review the entire record, including possible errors that had not been raised by the defendant at trial or on appeal. ² The court did so and affirmed Dickerson's conviction.

More than two years later, in 1980, petitioner filed a motion for new trial in the state superior court alleging that there had been additional defects in the jury instructions which violated his constitutional rights. ³ The superior court denied the motion, without a hearing, stating:

The entire record was reviewed at [the] time [of defendant's appeal], including particularly, the charge .... The allegations concerning the charge could have been raised in the 1977 appeal proceedings. They may not be reworked now in a motion for new trial.

Petitioner thereafter sought leave from a single justice of the Supreme Judicial Court to appeal the denial of the motion to the full Supreme Judicial Court pursuant to Mass.Gen.Laws Ann. ch. 278, Sec. 33E (West 1981), the state review statute applicable to capital defendants. The single justice denied leave to appeal, finding that petitioner's claims were waived by his failure to raise them at trial or on direct appeal. Petitioner then attempted to appeal his case to the full court in the face of the plain language of Sec. 33E which provides:

If any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court.

While petitioner's case was pending, the Supreme Judicial Court decided Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708 (1982), and squarely held that a single justice's denial of leave to appeal a denial of post-conviction relief pursuant to Sec. 33E is unreviewable. Thereafter, petitioner submitted a supplemental memorandum in which he argued that the Massachusetts post-conviction review procedures violated his equal protection rights because under Sec. 33E capital defendants must seek leave to appeal a denial of post-conviction relief while noncapital defendants have an appeal to the Massachusetts Court of Appeals as a matter of right. ⁴

Petitioner then filed a habeas corpus petition in federal district court, asserting both the jury instruction challenge and the equal protection claim. Upon an order of reference, the magistrate found the equal protection claim to be without merit and found review of the jury instruction challenge to be barred by petitioner's failure to raise the challenge at trial on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The district court adopted the magistrate's report and denied petitioner's application for a certificate of probable cause. This court granted leave to appeal. On appeal, petitioner does not challenge the dismissal of the jury instruction claim; the only issue he raises is the district court's finding that Sec. 33E does not violate the fourteenth amendment.

The Issues

The Commonwealth first contends that petitioner's claim is not appropriate for habeas corpus review because he is attacking a state review procedure, not his conviction. 28 U.S.C. Sec. 2254 states that a federal court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution ...." Traditionally, the writ has been available in a wide range of circumstances where the petitioner is in custody or is threatened with detention and such detention is in some way related to an alleged constitutional violation. The Supreme Court has specifically addressed state post-conviction procedure via habeas petitions in Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (review of state's denial of a free transcript to an indigent seeking review of denial of a writ of coram nobis) and Dowd v. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951) (review of petitioner's claim that state's failure to allow state habeas petition, coram nobis, or delayed appeal denied equal protection to petitioner).

Recently, however, a number of courts have refused to consider attacks on post-conviction proceedings by habeas petitions on the ground that errors or defects in a state post-conviction proceeding do not ipso facto render a detention unlawful and therefore, the petitioner is not entitled to habeas corpus relief. See Vail v. Procunier, 747 F.2d 277 (5th Cir.1984); Williams v. State of Missouri, 640 F.2d 140 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981); Noble v. Sigler, 351 F.2d 673, 678 (8th Cir.1965), cert. denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81 (1966); Bradshaw v. State of Oklahoma, 398 F.Supp. 838 (E.D.Okla.1975); Stokley v. Maryland, 301 F.Supp. 653 (D.Md.1969).

While this position is appealing at first blush, on analysis we find that it is neither consonant with the basic policies of habeas corpus relief nor Supreme Court rulings. ⁵ In Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), the Supreme Court held that habeas relief for a constitutional defect in state procedure cannot be made to depend upon whether the petitioner's underlying claim would be cognizable in a habeas proceeding or is grounds for reversal. Id., 395 U.S. at 330, 89 S.Ct. at 1717. See also, Wilbur v. State of Maine, 421 F.2d 1327, 1330 (1st Cir.1970); Williams v. LaVallee, 487 F.2d 1006, 1010 (2d Cir.1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974). The fact that a petitioner's underlying claim can only be addressed in state court does not give a state the license to administer its laws in an unconstitutional fashion.

Although there is no definitive list of the situations which are appropriate for habeas relief, the Advisory Committee on the Supreme Court Rules has suggested that claims not related to the propriety of the custody itself might be better handled by other means such as 42 U.S.C. Sec. 1983 and other related statutes. ⁶ And courts have, in some instances, treated habeas petitions by prisoners attacking the conditions of confinement as a claim for relief under 42 U.S.C. Sec. 1983. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1973); Clutchette v. Procunier, 497 F.2d 809 (9th Cir.1974), reversed on other grounds sub nom. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

The two principal differences between a habeas corpus petition and a suit brought pursuant to 42 U.S.C. Sec. 1983 are that release is not an available remedy in Sec. 1983 suits while it is the traditional remedy for successful habeas petitions, and exhaustion of state remedies is not a prerequisite to suit in federal court under Sec. 1983. In Preiser v. Rodriguez, 411 U.S. 475, 479, 93 S.Ct. 1827, 1831, 36 L.Ed.2d 439 (1973), a suit brought by a prisoner to restore good time credits he claimed were unconstitutionally denied him, the Supreme Court held that where the root of the action is an attack upon the detention or the duration of custody, habeas corpus, not a Sec. 1983 suit, is the appropriate means of seeking redress regardless of whether the original conviction is the basis of the claim. Id., 411 U.S. at 491, 93 S.Ct. at 1837. As in Preiser, the ultimate relief this petitioner seeks is release.

In Preiser the Court also noted that the strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors also require giving states the first opportunity to correct errors made in the internal administration of their prisons. Id., 411 U.S. at 492, 93 S.Ct. at 1837. We think that the considerations of comity the Supreme Court found in Preiser are present here; the state has a profound interest in its own criminal procedure and, if it is defective, ought to be given the first opportunity to correct it. Accordingly, both because release is the ultimate relief...