Gagne v. Fair

• Decision Date: 07 October 1987
• Docket Number: No. 87-1401,87-1401
• Citation: 835 F.2d 6
• Parties: Normand GAGNE, Petitioner, Appellant, v. Michael FAIR, Commissioner of Corrections, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 6

835 F.2d 6

Normand GAGNE, Petitioner, Appellant, v. Michael FAIR, Commissioner of Corrections, Respondent, Appellee.

No. 87-1401.

United States Court of Appeals First Circuit.

Heard Oct. 7, 1987.

Decided Dec. 10, 1987.

Stephen Hrones, by Appointment of the Court, with whom Hrones & Harwood, Boston, Mass., was on brief for petitioner.

Annette C. Benedetto, Asst. Atty. Gen., Crim. Bureau, with whom A. John Pappalardo, Deputy Atty. Gen., Chief, Crim. Bureau, and James M. Shannon, Atty. Gen., Boston, Mass., were on brief for appellee.

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

BOWNES, Circuit Judge.

Following a jury trial, petitioner Normand Gagne, and two codefendants were convicted of armed robbery, armed assault with intent to murder, attempted murder, assault and battery on a police officer, and assault and battery by means of a dangerous weapon. The Massachusetts Appeals Court reversed the convictions on the basis of errors at trial and remanded for a new trial. Commonwealth v. Gagnon, 16 Mass.App. 110, 449 N.E.2d 686 (1983). The Massachusetts Supreme Judicial Court granted a request from the Commonwealth for further appellate review and subsequently affirmed the convictions. Commonwealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d 1180 (1984). Gagne petitioned for a writ of habeas corpus in the United States District Court for the District of Massachusetts. After allowing Gagne to amend his petition, the district court denied the writ. This appeal followed. ¹

Gagne asserts that he was denied his constitutional right to a fair trial because the prosecutor improperly "vouched" for the credibility of a witness, Officer Petrick. Petitioner also points to other remarks made by the prosecutor during the trial, particularly to statements of personal opinion made by the prosecutor during his closing argument. Defense counsel objected only to the vouching for the credibility of Officer Petrick. Petitioner argues that in weighing the impact of the vouching statement, the court must examine the proceedings in their entirety, so that other comments, although unobjected to below, must be considered.

The Commonwealth contends here as it did below, that Gagne failed to exhaust his state remedies as required by 28 U.S.C. Sec. 2254(b) and (c). The district court found that the improprieties petitioner alleged could not support his claim of a constitutional violation and did not address the exhaustion issue. We agree with respondent that Gagne did not meet his initial obligation of exhausting remedies available to him in the Commonwealth courts and find that no exception applies. Under the applicable law, we must affirm the dismissal on exhaustion principles.

In order for the exhaustion requirement to be met, the petitioner must have fairly presented the substance of his federal habeas claim to the state court before seeking federal review. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971)); Dougan v. Ponte, 727 F.2d 199, 200 (1st Cir.1984). It is not enough that the same facts underly the claims. See Anderson, 459 U.S. at 6, 103 S.Ct. at 277; Picard, 404 U.S. at 276-77, 92 S.Ct. at 512-13. Rather, the legal theory in the state and federal courts must be the same. See Dougan, 727 F.2d at 201; Williams v. Holbrook, 691 F.2d 3, 9 (1st Cir.1982).

This does not mean that the petitioner must have expressed the theory in precisely the same terms. As we stated in Dougan v. Ponte, a petitioner may satisfy the exhaustion requirement by any of the following methods: (1) citing a specific provision of the Constitution; (2) presenting the substance of a federal constitutional claim in such manner that it likely alerted the state court to the claim's federal nature; (3) reliance on federal constitutional precedents; and (4) claiming a particular right specifically guaranteed by the Constitution. 727 F.2d at 201. See also Daye v. Attorney General of State of New York, 696 F.2d 186, 192-93 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).

After examining the extracts from the state court briefs provided us by the parties, we find no reference to any specific provision of the Constitution or to any right specifically guaranteed by the Constitution. The portion of the briefs dealing with prosecutorial misconduct contained only one oblique reference to constitutional rights. In the issue caption, the defendant alleged that he had been denied his "rights to a fair trial and due process of the law." The only other arguable reference was a repetition of the words "fair trial" within the body of the argument. This does not meet the first or fourth Dougan requirement.

Petitioner also failed to suggest a constitutional claim by the use of federal precedent. Although he cited two federal cases, neither contains an analysis of constitutional law. In both cases, the court of appeals reviewed claims of a prosecutor's injection of personal opinion into argument pursuant to its supervisory authority over the district court. When a federal appellate court conducts supervisory review, constitutional rights need not be implicated. As the Court observed in Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974), "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice.' " (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941)). The first case cited by petitioner, Patriarca v. United States, 402 F.2d 314 (1st Cir.1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969), addressed the prosecutor's conduct as an ethical violation. Id. at 320-21. The second case, United States v. Cotter, 425 F.2d 450 (1st Cir.1970), relied upon Patriarca.

In determining whether Gagne presented the substance of his claim in a manner likely to alert the Commonwealth courts to its "federal nature," we are faced with a situation nearly identical to Dougan v. Ponte, 727 F.2d 199 (1st Cir.1984). In Dougan, the petitioner claimed that evidence had been improperly admitted and that the prosecutor had improperly disparaged "motorcycle gang[s]" and Dougan's association with them. We found that both of the claims fell "precisely within the category of alleged errors whose description does not in and of itself raise the red flag of constitutional breach." Id. at 201 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). A study of Dougan's state court brief disclosed but a single indication of a constitutional claim: issue captions included the label of "unfair trial." The discussion which followed contained no reference to constitutional provisions or rights or to any state or federal case which rested on a constitutional ground, nor did it provide the basis for a claim implicating a particular right. Id. "In short, the most meticulous search on the part of the state court would have turned up nothing suggesting that petitioner was making a federal due process argument." Dougan, 727 F.2d at 202.

Similarly here, Gagne's allegation of an unfair trial appeared only briefly in one caption and within the discussion that followed. Petitioner never set forth a constitutional frame of reference. Rather, he buttressed his claim of an unfair trial with a citation to the Massachusetts Supreme Judicial Court Rule 3:08, PF 13(b). This could only mean that the argument should be read as an appeal to Massachusetts standards for a fair trial, especially since " '[s]tate court briefs routinely characterize a variety of errors as a denial of a fair trial, conveying the thought that the error, simply as a matter of state law, warrants a new trial.' " Dougan, 727 F.2d at 201 (quoting Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir.1982)).

The unexplained inclusion of the term "due process of the law" in Gagne's issue caption, while more than appeared in Dougan's brief, presented no perceptibly greater signal to the Commonwealth courts that federal constitutional claims were implicated. In Dyer v. Ponte, 749 F.2d 84 (1st Cir.1984), the petitioner made two references to his fourteenth amendment right to a fair trial in his main brief and repeatedly alleged due process violations in his reply brief. He neglected, however, to undertake any federal analysis. While the court did decide to address the constitutional claim, our review of the exhaustion issue prompted us to "question whether a petitioner who only cites 'book and verse' [on the federal constitution] has done enough to inform the state court of his federal constitutional claim." Dyer, 749 F.2d at 87 (emphasis in original). Gagne has fallen short even of the minimal citation which led the Dyer court to a reluctant review of the underlying claim. In light of the state court briefs in this case, we have no difficulty ruling that Gagne did not alert the Commonwealth courts to the federal nature of his claim. And although the state court need not have addressed or decided a petitioner's federal claim in order for the exhaustion requirement to be met, see Kines v. Butterworth, 669 F.2d 6, 12 (1st Cir.1981), cert. denied, 456 U.S. 980, 102 S.Ct. 2250, 72 L.Ed.2d 856 (1982), we find additional support for our view that the Massachusetts courts were not alerted to the federal constitutional claims in the fact that the court opinions analyze the issue not from a constitutional standpoint but strictly on the basis of Massachusetts cases and federal cases grounded on the supervisory authority of appellate courts.

There are still further reasons for finding petitioner has failed to exhaust his state remedies. While the focus of Gagne's unfair trial...