Hall v. DiPaolo, 92-1912
| Decision Date | 18 February 1993 |
| Docket Number | No. 92-1912,92-1912 |
| Parties | Herman HALL, Jr., Petitioner, Appellant, v. Superintendent Paul L. DiPAOLO, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Herman H. Hall, Jr., pro se on Application for Certificate of Probable Cause and brief.
Before TORRUELLA, CYR and STAHL, Circuit Judges.
Pro se petitioner Herman Hall, a Massachusetts inmate, seeks a certificate of probable cause to appeal the dismissal of his second petition for habeas corpus. The district court adopted the recommendation of a magistrate judge and dismissed the habeas petition on the the ground that Hall failed to exhaust his state remedies. In so doing, the court relied on the fact that Hall had previously filed a similar habeas petition that was dismissed for nonexhaustion. For the reasons discussed below, we grant the certificate of probable cause and vacate the dismissal. We remand for consideration of the issue whether exhaustion has obtained as a result of certain post-conviction motions that Hall filed in state court.
On July 29, 1988, Hall was convicted by a Suffolk Superior Court jury of larceny of a motor vehicle and burning personal property. The charges arose from Hall's alleged theft of a Cadillac from the victims, Earl Fisher and his mother, Lula Fisher, between January 3-6, 1988. The Massachusetts Appeals Court affirmed Hall's conviction on direct appeal in an unpublished decision. See Commonwealth v. Herman H. Hall, Jr., 28 Mass.App.Ct. 1111, 550 N.E.2d 153 (1990). On March 28, 1990, the Massachusetts Supreme Judicial Court (SJC) denied Hall's application for further appellate review. See 407 Mass. 1101, 552 N.E.2d 863 (1990). 1 Hall then turned to federal court.
Hall filed his first habeas corpus petition in June 1990. The petition, supplemented by multiple filings, raised five claims:
(1) that Hall's conviction resulted from evidence gained in an unconstitutional search and seizure (i.e., the VX-829 registration);
(2) that Earl Fisher and another man conspired to "do an insurance job" on the car, and, with the help of officials from the Boston Fire Department's Arson Squad, framed Hall;
(3) that Hall was unlawfully arrested in Providence by Boston Arson Squad officers who, in addition to lacking probable cause, had no territorial jurisdiction to arrest Hall;
(4) that the district attorney tricked the jury into believing that Hall stole the car and "re-registered" it in Rhode Island when, in fact, the car was never "re-registered." Hall alleged that the prosecutor deliberately misrepresented the facts concerning the car's registrations.
(5) ineffective assistance of counsel based on defense counsel's failure to (a) move to suppress the VX-829 registration evidence, (b) challenge the lawfulness of Hall's arrest, (c) call certain witnesses, and (d) impeach Earl Fisher. Hall also complained that defense counsel helped the district attorney cover-up the Arson Squad's misconduct. 2
The respondent filed an answer which raised nonexhaustion, inter alia, as an affirmative defense. This defense was specifically predicated on the assertion that none of Hall's habeas claims were raised in Hall's direct criminal appeal. The district court adopted the recommendation of a magistrate judge and dismissed Hall's habeas petition because none of his claims had been raised in Hall's application for further appellate review. See Mele v. Fitchburg Dist. Court, 850 F.2d 817, 823 (1st Cir.1988) (). 3 The district court granted Hall's request for a certificate of probable cause, but his appeal from this dismissal order was dismissed as untimely. Undaunted, Hall filed a second habeas petition with the district court. This second petition essentially reiterated the five claims identified above, although the petitions are not identical twins. 4
A different magistrate judge recommended that Hall's second habeas petition be summarily dismissed because it raised the same claims as his first and Hall still had failed to exhaust his state remedies. The district court adopted this recommendation and dismissed the petition. 5 Thereafter, the court denied Hall's request for a certificate of probable cause on the same nonexhaustion ground. Hall has filed a timely notice of appeal and request for a certificate of probable cause.
In answering a habeas corpus petition under 28 U.S.C. § 2254, the respondent is required to "state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him under the statutes or procedural rules of the state and including also his right of appeal both from the judgment of conviction and from any adverse judgment or order in the post-conviction proceeding." See Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. (emphasis supplied). The record indicates that Hall filed two pro se post-conviction motions in the Massachusetts superior court before his direct appeal was resolved. The first of these raised an ineffective assistance of counsel claim, which the trial court denied on the merits and Hall did not appeal. Hall's second post-conviction motion (titled "Motion for new trial/newly discovered evidence") raised Hall's unconstitutional arrest and search and seizure claims, as well as a less intelligible claim that Hall could not show his evidence to the jury. 6 This motion also was denied by the trial judge. The record indicates that Hall filed a pro se notice of appeal from this ruling, but no disposition of this appeal is recorded. From all that appears in the record, it may still be pending.
" '[I]n determining whether a remedy for a particular constitutional claim is "available," the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim.' " Carsetti v. Maine, 932 F.2d 1007, 1012 (1st Cir.1991) (quoting Harris v. Reed, 489 U.S. 255, 268, 109 S.Ct. 1038, 1046, 103 L.Ed.2d 308 (O'Connor, J., concurring)). Because the respondent overlooked Hall's post-conviction motions in its original answer to Hall's first habeas petition, the district court was not able to assess the likelihood that exhaustion has obtained through Hall's post-conviction motions. Yet it appears likely that exhaustion has obtained, if not through Hall's actual presentation of his habeas claims to the state courts, then by a procedural default. We explain.
Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). However, exhaustion may be found even where the habeas petitioner has never presented his federal claims to state court. Such would be the case if, at the time the habeas petition was filed, there was no longer a state remedy available due to the petitioner's procedural default.
"[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989). Where exhaustion has obtained through a procedural default, the habeas petitioner must show cause for that default and prejudice arising therefrom before the federal court may reach the merits of his habeas claims. See, e.g., Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989); cf. Church v. Sullivan, 942 F.2d 1501, 1507 n. 5 (10th Cir.1991). In the usual case, victims of a fundamental miscarriage of justice will meet the "cause plus prejudice" test. See Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). However, in those rare cases where that is not so, a federal habeas court may consider a procedurally defaulted claim absent a showing of cause for the default only where the petitioner demonstrates that his is an "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent...." Id. at 496, 106 S.Ct. at...
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