Goodrich v. Hall, 05-2166.

• Decision Date: 18 May 2006
• Docket Number: No. 05-2166.,05-2166.
• Citation: 448 F.3d 45
• Parties: Robert P. GOODRICH, Petitioner, Appellant, v. Timothy HALL, Superintendent, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 45

448 F.3d 45

Robert P. GOODRICH, Petitioner, Appellant, v. Timothy HALL, Superintendent, Respondent, Appellee.

No. 05-2166.

United States Court of Appeals, First Circuit.

Heard May 4, 2006.

Decided May 18, 2006.

Jill Brenner Meixel, with whom Peter E. Gelhaar and Donnelly, Conroy & Gelhaar, LLP were on brief, for appellant.

Maura D. McLaughlin, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

Robert Goodrich appeals from the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. That court granted Goodrich a certificate of appealability providing for review of the question of "[w]hether [Goodrich] was denied his due process rights under the Fourteenth Amendment of the United States Constitution when knowingly false testimony was presented before the state grand jury and [Goodrich] was unlawfully indicted as a result thereof." We affirm the denial of the petition.

Goodrich was convicted in Massachusetts after a jury trial in January 2001 of armed robbery and was sentenced to ten to fifteen years' imprisonment. Goodrich, in August 1999, had snuck into the office of a used car dealership just as Yajun Yang, who knew Goodrich, was locking up for the night.¹ Goodrich stuck a gun into Yang's ribs, robbed him of $200, and forced him into the trunk of a car, where he left him.

In December 2002, the state Appeals Court affirmed Goodrich's conviction, rejecting his sole claim that "the indictment against him should have been dismissed because the Commonwealth presented improper testimony before the grand jury." Commonwealth v. Goodrich, 56 Mass.App Ct. 1113, 779 N.E.2d 1004, 2002 WL 31730244, at *1 (2002) (unpublished table decision). The Supreme Judicial Court (SJC) denied his application for leave to obtain further appellate review (ALOFAR) on January 22, 2003. Commonwealth v. Goodrich, 438 Mass. 1107, 782 N.E.2d 1083 (2003) (unpublished table decision). Goodrich filed his petition for a writ of habeas corpus in federal court on December 17, 2003, and this was denied on its merits on March 11, 2005.

The gist of the habeas claim is that the prosecution had improperly offered evidence at the grand jury proceeding which was so egregious as to require dismissal of the indictment. The theory is that dismissal was required despite the facts that the petit jury convicted Goodrich after a trial and that the petit jury was unaware of the testimony before the grand jury about which Goodrich complains. Goodrich asserts that no grand jury would have indicted him save for the improper evidence, and that this means the indictment should have been dismissed; thus, his conviction is invalid, and habeas relief is required.

The alleged impropriety was that a detective had read to the grand jury the police report of one of the officers who had arrived at the scene. According to the detective's testimony, the police report stated that Yang said that he "only knows the suspect [an ex-employee] as Bob, and that approximately two months ago the same employee stole $12,000 from him." A grand juror inquired of the detective, "You said something about there were two robberies; one for $200 and one for $12,000?" The detective replied accurately that that was "what the victim was telling us." But then he went on to say, "We learned later that this had apparently taken place" outside the jurisdiction of his police department. The prosecutor interceded and instructed the grand jurors to disregard the information pertaining to the alleged $12,000 robbery, to strike it from their minds, and to focus on the incident in which the $200 was stolen.

Goodrich insists that he was never indicted for any $12,000 robbery (or even accused of such a robbery other than as described above), and the Commonwealth does not argue otherwise. Goodrich argues that the prosecutor, seeking to portray Goodrich as a habitual robber, knowingly presented false testimony to the grand jury; that this ploy succeeded in prejudicing the grand jury; and that the resulting indictment and ultimate conviction violated his Fourteenth Amendment right to due process.

The familiar litany of analysis of habeas petitions is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, and judicially created rules of restraint. There is no dispute that the petition was timely filed, within the statutory limits. See id. § 2244(d)(1)(A) (providing for one-year period of limitation, running from the latest of, inter alia, "the date on which the judgment became final by the conclusion of direct review," for habeas applications by state prisoners).

The next question is whether Goodrich had exhausted his state remedies by having first presented the federal constitutional issue to the state courts for their decision. See id. § 2254(b),(c); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (discussing exhaustion principle). We review this issue de novo. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir.2002).

This circuit's rules about what constitutes presenting a federal issue are fairly generous. See id. (stating that "a petitioner need not express his federal claims in precisely the same terms in both the state and federal courts"). We have said that the "ways in which a petitioner might satisfy his or her obligation to fairly present a federal constitutional issue to a state's highest court" are "myriad," and we have listed examples, such as "(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." Id. at 52 (quoting Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987)). The exhaustion requirement can also be satisfied where "[a]n individual's claim, arising under and asserted in terms of state law, . . . as a practical matter, [is] indistinguishable from one arising under federal law." Id. (internal quotation marks omitted) (quoting Nadworny v. Fair, 872 F.2d 1093, 1099 (1st Cir.1989)).

In his brief before the state Appeals Court, Goodrich expressly relied on the Fourteenth Amendment to the United States Constitution, explicitly invoked its Due Process Clause, and cited to apposite federal cases, including United States v. Basurto, 497 F.2d 781 (9th Cir.1974).

What makes this question of exhaustion close is that the only decisions cited in Goodrich's ALOFAR are state decisions. However, Goodrich primarily relied in the ALOFAR on a state case invoking federal due process as to an alleged error in the grand jury proceedings. See Commonwealth v. Kelcourse, 404 Mass. 466, 535 N.E.2d 1272, 1273 (1989) (defendant argued that prosecutor's statement to grand jury violated, inter alia, "his Fourteenth Amendment right to due process" (citing Hicks v. Oklahoma, 447 U.S. 343, 345-47, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980))). Furthermore, Goodrich's ALOFAR did explicitly frame both his "Statement of Points with Respect to Which Further Appellate Review is Sought" and his "Statement of Argument" in terms of a violation of "Amendment XIV," by which he appears to have meant the Fourteenth Amendment to the United States Constitution (and also in terms of a violation of a state constitutional provision).

Taking into account the background of Goodrich's more explicit federal argument before the state Appeals Court, the absence of any sign that Goodrich abandoned his federal claim in the ALOFAR, and the nature of the argument in the ALOFAR (which is strikingly similar to, and indeed largely a verbatim copy of, the Appeals Court brief), see Barresi, 296 F.3d at 52 n. 1 ("If it cannot be said that the petitioner abandoned his or her federal claims on appeal to the SJC, federal exhaustion review includes consideration of the petitioner's lower court filings as a `backdrop' to his or her ALOFAR."), we think it likely "a reasonable jurist would recognize the [federal] constitutional dimensions of the petitioner's claims." Id. at 52.

The federal due process claims having been exhausted, the next question is which standard of review to apply. Under AEDPA, federal courts may not grant habeas relief "`with respect to any claim that was adjudicated on the merits in State court proceedings' unless the state court decision" meets either of two criteria: "1) [it] `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or 2)[it] `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" McCambridge v. Hall, 303 F.3d 24, 34 (1st Cir.2002) (en banc) (citations omitted) (quoting 28 U.S.C. § 2254(d)). In this circuit, if the state court has not adjudicated the federal claim on the merits, then we do not ask whether the decision involved an unreasonable application of federal law, but instead review the constitutional question de novo. See id. at 35; see also Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001) (observing that "we can hardly defer to the state court on an issue that the state court did not address"). Here, it does not matter which standard of review we apply, for the outcome is the same.

The Commonwealth argues that our analysis should then proceed, in priority, to ask the question of whether Goodrich's claim is barred because, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), it could only succeed if this court were to articulate a "new constitutional rule[] of criminal procedure," and because such a rule (unless it comes within an exception) may not be applied to cases, such as this one, "which have become final...