Mele v. Fitchburg Dist. Court

• Citation: 850 F.2d 817
• Decision Date: 09 March 1988
• Docket Number: No. 88-1019,88-1019
• Parties: Lane T. MELE, Petitioner, Appellant, v. FITCHBURG DISTRICT COURT, et al., Respondents, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 817

850 F.2d 817

Lane T. MELE, Petitioner, Appellant, v. FITCHBURG DISTRICT COURT, et al., Respondents, Appellees.

No. 88-1019.

United States Court of Appeals First Circuit.

Heard March 9, 1988.

Decided June 15, 1988.

Robert A. Falk with whom Henry F. Owens III and Owens & Associates, Boston, Mass., were on brief, for petitioner, appellant.

Marc C. Laredo, Asst. Atty. Gen., Criminal Bureau, with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees.

Before COFFIN, Circuit Judge, WISDOM, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

In 1982, petitioner-appellant Lane T. Mele was involved in an automobile accident which took a human life. He was charged with negligent homicide. The following March, he admitted the sufficiency of the facts and was found guilty by a judge in the Gardner District Court (a Massachusetts state court). Mele received a two year suspended sentence and a like period of probation, with compulsory community service. He appealed. On July 11, 1985, after the probationary period was over, the Massachusetts Appeals Court (MAC) vacated the judgment of conviction and ordered retrial before the jury-of-six session in Fitchburg District Court. Commonwealth v. Mele, 20 Mass.App.Ct. 958, 480 N.E.2d 647 (1985).

In the jury trial which ensued, petitioner was again convicted of negligent homicide. The judge--not the same one who had presided at Mele's earlier (bench) trial--sentenced him to thirty months in jail and a like period of probation. The judge credited petitioner for the two years "served" on the original sentence, but ordered that, as to the "remaining" six months, he was to serve twenty days in a penal institution. The balance was suspended.

Mele appealed once again. This time, the MAC affirmed by way of an unpublished memorandum and order. See Commonwealth v. Mele, 24 Mass.App.Ct. 1101, 506 N.E.2d 186 (1987). Petitioner then applied to the Massachusetts Supreme Judicial Court (SJC) for further appellate review. His application was summarily denied. Commonwealth v. Mele, 400 Mass. 1101, 508 N.E.2d 620 (1987). Undeterred, Mele filed for habeas review in the United States District Court for the District of Massachusetts. See 28 U.S.C. Secs. 2241-54. He named as respondents the Fitchburg District Court and the Worcester County sheriff. In his habeas application, he reversed an earlier tactical decision. We explain briefly.

In appealing to the MAC from the judgment in the jury-of-six session, petitioner raised four points. Three pertained to rulings made during trial, the particulars of which need not concern us. The final ground had a constitutional dimension: Mele asserted that the imposition of a more severe sentence upon retrial, following as it did his successful appeal of his March 1983 conviction, trammelled his right to due process and amounted to double jeopardy. Yet after the MAC ruled, Mele apparently dropped the constitutional challenges. In presenting his request for further appellate consideration to the SJC, he explicitly sought review of the alleged trial errors--nothing more. And after the SJC declined to take cognizance of the appeal, petitioner made no effort to obtain collateral consideration of the constitutional issues in the Massachusetts courts. ¹

Petitioner's federal habeas application, however, took up the constitutional cudgels anew. The main basis for relief was the claim that imposition of a more severe sentence following both reversal of Mele's first conviction and expiration of the original sentence, transgressed his constitutional rights. ² Respondents moved to dismiss. They averred, first, that petitioner's failure to exhaust the constitutional issues in the state courts barred prosecution of the petition; and second, that in any event, the state court proceedings were constitutionally salubrious. Eventually the district judge granted respondents' motion from the bench. Mele v. Fitchburg District Court, Cr. No. 87-1656 (D.Mass. Dec. 2, 1987) (ore tenus decision). Although we have not been provided with a transcript, it appears from the pertinent docket entry that the judge considered Mele to "ha[ve] exhausted his state remedies," but ruled against him on the merits. Because we find nonexhaustion and no applicable exception, we affirm the dismissal without reaching petitioner's core contentions.

I

We start with bedrock: "under our federal system, the federal and state 'courts [are] equally bound to guard and protect rights secured by the Constitution.' " Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886)). Long ago, the Court concluded that a federal court should not consider questions posed in a habeas petition until the "power of the highest state court in respect of such questions" has been exhausted. United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 2, 70 L.Ed. 138 (1925). See also Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). When Congress adopted the federal habeas statute in 1948, it codified this prudential principle:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. Sec. 2254(b), (c).

The exhaustion principle ensures that state courts have the first opportunity to correct their own constitutional errors. Duckworth v. Serrano, 454 U.S. 1, 2, 102 S.Ct. 18, 18, 70 L.Ed.2d 1 (1981) (per curiam); Martens v. Shannon, 836 F.2d 715, 718 (1st Cir.1988); Casale v. Fair, 833 F.2d 386, 391 (1st Cir.1987). The principle enables us to accord appropriate respect to the sovereignty of the states in our federal system, and promotes comity by "minimiz[ing] friction between our federal and state systems of justice." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (quoting Duckworth, 454 U.S. at 3, 102 S.Ct. at 19).

Comity, of course, knows some rational bounds. The precept, for example, does not require a habeas petitioner to exhaust every possible state procedure before bringing a claim to federal court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). But the applicant is at risk to present the state courts with a fair opportunity to confront and correct an alleged infirmity. Id. at 277-78, 92 S.Ct. at 513-14; Martens, 836 F.2d at 717-18; Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.1987). It is not enough merely to raise an issue before an intermediate court; one who seeks to invoke the federal habeas power must fairly present--or do his best to present--the issue to the state's highest tribunal. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir.1986); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 1212, 103 S.Ct. 3547, 77 L.Ed.2d 1395 (1983); Franklin v. Wyrick, 529 F.2d 79, 81 (8th Cir.), cert. denied, 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 208 (1976).

In this case, Mele raised his constitutional objections before the MAC. To preserve them for federal habeas scrutiny, he was obliged to try to bring them before the SJC. He seemingly did not do so. Yet Mele argues that, while he did not advance the constitutional challenges in so many words before the SJC, the court had enough of an opportunity to address the questions to permit him to move to a federal forum. This thesis requires us, in effect, to map the contours of the exhaustion "opportunity" which must be accorded to the state's highest tribunal, given prevailing Massachusetts appellate practice. Our search for a solution to this absorbing tangram leads us, inevitably, into the byways of the appeals process.

II

Though the SJC and the MAC have concurrent jurisdiction in many areas, and direct review in the SJC may be sought in certain cases, see Mass.Gen.Laws c. 211A, Sec. 10, the usual appellate route in virtually all criminal matters leads first to the MAC. See id. Once the MAC has resolved a case, the losing party may seek further appellate review in the SJC, Mass.Gen.Laws c. 211A, Sec. 11, but the SJC can, generally speaking, accept or decline the proffer, as it chooses. Such discretionary review is granted only if three (or more) of the justices order it for substantial reasons affecting either the public interest or the interests of justice. Id. ³ It is this discretion which Mele sought unsuccessfully to invoke after the MAC had rebuffed his appeal from the jury-of-six conviction.

By rule of court, petitioner was required to follow a set procedure when he tried to interest the SJC in taking his case. Rule 27.1(b) of the Massachusetts Rules of Appellate Procedure limns the contents of an application for leave to obtain further appellate review (ALOFAR). The rule states in pertinent part:

The application for leave to obtain further appellate review shall contain, in the following order: (1) a request for leave to obtain further appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any, of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the Appeals Court is sought; and (5) a brief statement (covering not more than ten pages of typing), including appropriate authorities, indicating...