Domaingue v. Butterworth, 80-1415

• Decision Date: 12 February 1981
• Docket Number: No. 80-1415,80-1415
• Citation: 641 F.2d 8
• Parties: James E. DOMAINGUE, Petitioner, Appellant, v. Fred BUTTERWORTH et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 8

641 F.2d 8

James E. DOMAINGUE, Petitioner, Appellant, v. Fred BUTTERWORTH et al., Respondents, Appellees.

No. 80-1415.

United States Court of Appeals First Circuit.

Submitted Oct. 10, 1980.

Decided Feb. 12, 1981.

Gary S. Pfisterer, Springfield, Mass., by appointment of the Court, on brief for petitioner, appellant.

Francis X. Bellotti, Atty. Gen., Barbara A. H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, and Harvey A. Schwartz, Asst. Atty. Gen., Boston, Mass., Criminal Bureau, on brief for respondents, appellees.

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

BOWNES, Circuit Judge.

In 1977, James Domaingue was convicted and sentenced to state prison on two indictments for assault and battery with a dangerous weapon, charges that stemmed from a barroom altercation in western Massachusetts. The sole issue presented by this appeal is whether the district court erred in dismissing Domaingue's petition for a writ of habeas corpus, 28 U.S.C. § 2254, without holding an evidentiary hearing on his claim that he had received ineffective assistance of counsel.

Prior Proceedings

Domaingue's ineffective assistance of counsel claim developed and broadened as he made his way through the Massachusetts and federal courts. Although trial counsel did not file a timely appeal from the conviction, a public defender appointed to represent Domaingue obtained leave to file a late notice of appeal, Mass.G.L. c. 278, § 33H (repealed July 1, 1979). To the Massachusetts Appeals Court, appellate counsel argued that the trial judge's instruction on self-defense was inadequate and shifted the burden of proof to the defendant, and contended that trial counsel was ineffective in connection with his failure to request a proper self-defense instruction or except to the one given. The Appeals Court agreed the self-defense instruction given was cryptic and inadequate, but thought the charge tilted in Domaingue's favor in one respect and trial counsel may have made a tactical judgment not to except. Even assuming the failure to except stemmed from counsel's ignorance of the law of self-defense, the Appeals Court concluded trial counsel had been effective because, through cross-examination and argument, he "preserved the only tenuous defense available" and because the self-defense instruction given "did not adversely affect the jury's appraisal of the meagre self-defense testimony as to the confrontation between the defendant and (the victim) Brooke." ¹ Commonwealth v. Domaingue, Mass.App.Ct.Adv.Sh. (1979) 1655, 1663-65, --- Mass.App. ---, --- - ---, 392 N.E.2d 1207, 1211-12. Appellate counsel sought further appellate review in the Supreme Judicial Court.

Present counsel entered the case by filing a supplemental application for further appellate review, in which he urged the Supreme Judicial Court "to scrutinize the entire record on review, not merely to examine the question (of effectiveness of counsel) with regard to the failure to object to a jury instruction." Present counsel asserted that the record and docket disclosed that trial counsel had waived eleven pre-trial motions and had subpoenaed but later dismissed two defense witnesses one of whom was to offer evidence that Domaingue acted in self-defense and the other of whom was a psychologist prepared to testify about Domaingue's "mental status with regard to capacity, intent and insanity." ² Present counsel also argued that it would deny due process of law to refuse to review the erroneous self-defense instruction because an exception to it had not been taken. The Supreme Judicial Court denied further appellate review.

In addition, while the further appellate review application was pending, present counsel filed a motion for a new trial in the trial court. As well as citing trial counsel's waiver of pretrial motions, dismissal of two defense witnesses, and failure to object to the court's self-defense instruction, present counsel attacked trial counsel's performance by saying trial counsel had taken Domaingue's case over from his law partner between indictment and trial, was only "superficially familiar" with the case, and failed to protect Domaingue's rights or present his best defenses. In the new trial motion, present counsel also alleged prosecutorial misconduct (threats by the prosecutor that induced trial counsel to dismiss the two defense witnesses) and the existence of newly discovered evidence (from a witness who was unavailable at trial and would testify Domaingue acted in self-defense).

At the hearing on the new trial motion, present counsel took the position that "(m)any things (bearing on the adequacy of trial counsel) didn't come out through the appellate process," adding to the previously mentioned factors trial counsel's decision to call Domaingue to the stand with the knowledge Domaingue recalled virtually nothing about the events in question, and trial counsel's failure to file a timely appeal or new trial motion. Present counsel tendered no affidavits or evidence in support of his ineffective assistance of counsel or prosecutorial misconduct claims, ³ although he did present an affidavit from the witness whose testimony was said to be newly discovered evidence. The new trial motion was denied from the bench, without significant explanation.

Within two weeks, present counsel filed the instant petition for a writ of habeas corpus in federal district court. In the petition, he alleged that trial counsel had been ineffective for reasons enumerated previously, e. g., he waived pre-trial motions, dismissed two defense witnesses, called the defendant to the stand without warning and for no reason, failed to object to a blatantly erroneous self-defense instruction, and failed to seek appellate review. The petition also included claims that (1) the self-defense instruction given denied Domaingue due process, (2) Domaingue was denied meaningful appellate review of the instruction because no objection had been taken to it, and (3) the prosecutor failed to disclose exculpatory evidence. It was admitted that the last of these claims had not been presented to the state courts.

In a brief filed in support of the habeas corpus petition, present counsel elaborated on the ineffective assistance of counsel claim by adding that trial counsel did no investigation, never interviewed any witnesses, failed to request a change of venue though aware of Domaingue's notoriety in the area, failed to confer with Domaingue about trial strategy, and went to Cape Code for the weekend before trial instead of keeping an appointment with Domaingue. Present counsel requested an evidentiary hearing on the ineffective assistance of counsel claim, contending the record was inadequate for an assessment of trial counsel's investigation, preparation, and defense of the case. Listed as potential witnesses at such an evidentiary hearing were trial counsel and Domaingue. Present counsel also intended to introduce the report of the psychiatrist, Dr. Capers, who trial counsel did not call to the stand.

The request for an evidentiary hearing was opposed by the Commonwealth, which took the position that the ineffective assistance of counsel claim had been exhausted only as it pertained to trial counsel's failure to object to the self-defense instruction. The request for an evidentiary hearing was referred to a magistrate.

Although the magistrate's opinion is not entirely clear, it appears he thought the ineffective assistance of counsel claim, as well as the claim that the self-defense instruction denied Domaingue due process, had been exhausted in the state courts, but the "meaningful appellate review claim" had not. (He noted that the claim that the prosecutor withheld exculpatory evidence had been waived.) The magistrate concluded that, in any event, an evidentiary hearing was unnecessary because the record and Appeals Court findings were adequate. Moreover, he apparently rejected the ineffective assistance of counsel claim as unfounded.

Upon consideration of the magistrate's report, the district judge denied an evidentiary hearing and dismissed the habeas corpus petition without prejudice. His ruling was as follows:

The Court agrees with the Magistrate's findings that there is no need for an evidentiary hearing. The Court has considered the entire record and finds that petitioner received all constitutional proprieties during his state trial and appeal on those issues raised to date. Since other issues have not yet been determined in the state courts, this Court cannot act on same at this juncture. Accordingly, the Court dismisses this case without prejudice. It is so ordered.

From this ruling, it is unclear whether the district court felt the ineffective assistance of counsel claim had been exhausted in whole or in part. Domaingue appealed the dismissal of his petition; the district court granted a certificate of probable cause.

The Issue on Appeal

The sole argument made by Domaingue on appeal is that the district court should have held an evidentiary hearing on his ineffective assistance of counsel claim. The Commonwealth's position is that, because Domaingue had not exhausted state remedies on this claim in its present form, the district court was justified in denying an evidentiary hearing and dismissing the petition without prejudice. We are in essential agreement with the Commonwealth.

To have exhausted state remedies, as required by 28 U.S.C. § 2254(b)-(c), a habeas corpus petitioner must have presented the substance of his claim to the state courts. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). The exhaustion requirement is not satisfied if a petitioner presents new legal theories or new factual allegations in federal court that transform his claim or cast it in a significantly different light. E. g., Turner v. Fair, 617 F.2d 7, 11 (1st Cir. 1980); Needel v. Scafati, 412 F.2d 761, 766 (1st Cir.), cert. denied...