Scarpa v. Dubois

• Citation: 38 F.3d 1
• Decision Date: 01 August 1994
• Docket Number: No. 93-1795,93-1795
• Parties: Nazzaro SCARPA, Petitioner, Appellee, v. Larry E. DUBOIS, etc., Respondent, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

38 F.3d 1

Nazzaro SCARPA, Petitioner, Appellee, v. Larry E. DUBOIS, etc., Respondent, Appellant.

No. 93-1795.

United States Court of Appeals, First Circuit.

Heard Aug. 1, 1994.

Decided Oct. 18, 1994.

William J. Duensing, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief, for appellant.

Nazzaro Scarpa, pro se, orally and on original briefs.

Seth M. Kalberg, Boston, MA, by appointment of the court, orally and on supplemental brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires that we address an important question, not authoritatively resolved by controlling precedent: When (if ever) does defense counsel's substandard performance in a criminal case--never a pretty sight--become so unattractive that a habeas court must forgo the customary inquiry into the harmful effects of attorney error and, instead, conclusively presume that counsel's blunders prejudiced the defendant?

The question arises in the following context. Petitioner-appellee Nazzaro Scarpa brought a pro se application for habeas corpus in the federal district court. ¹ See 28 U.S.C. Secs. 2241-2254 (1988). He denominated a state correctional official, in his representative capacity, as the respondent. The district court discerned a Sixth Amendment violation: it concluded that Scarpa's trial counsel in the state court rendered grossly ineffective legal assistance to him, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (elucidating applicable test); see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (applying Strickland in the habeas context), and that counsel's woeful performance gave rise to a per se presumption of prejudice. The district court relied principally on dictum contained in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for the proposition that it did not need to inquire into the existence of actual prejudice.

Respondent appeals. Although the district court's reading of Cronic finds some support in the case law, including isolated cases decided by the Ninth and Tenth Circuits, see United States v. Swanson, 943 F.2d 1070, 1073-74 (9th Cir.1991); Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir.1988), we believe that Cronic is not nearly so wide-ranging as the district court assumed. Hence, we reverse.

I. BACKGROUND

We glean the essential facts from the transcript of petitioner's trial in Suffolk Superior Court. On June 10, 1987, Joseph Desmond, an agent of the federal Drug Enforcement Administration (DEA), posing as a would-be cocaine purchaser, met with his initial target, Robert Ricupero, at a pub in East Boston. At Ricupero's request, petitioner joined them. The trio discussed a possible cocaine purchase and then crossed the street to a parked limousine that bore the insignia of the "Snow White Limousine Service." Ricupero and Scarpa entered the vehicle. As Desmond later testified, Scarpa passed roughly 28 grams of cocaine to Ricupero, who handed it to Desmond in exchange for $1500 in cash. Ricupero kept $100 and gave the remainder to Scarpa. These events occurred under police surveillance.

The next encounter between Desmond and his prey occurred on July 18, 1987. In preparation for it, the authorities again assigned a cadre of law enforcement officers to surveillance duties. Desmond and Ricupero met at the same pub. At Ricupero's invitation, Scarpa again joined them. On this occasion, the actual exchange occurred in the deserted stairwell of a nearby apartment building, and a fourth man, James Marcella, entered the equation. Desmond testified that Marcella handed a package containing roughly 55 grams of cocaine to Scarpa, who passed the package to Ricupero. When Ricupero placed the drugs within Desmond's reach, Desmond handed him $3000. Ricupero slipped the money to Scarpa, who turned it over to Marcella.

In due season, the Commonwealth indicted petitioner for drug trafficking and unlawful distribution. A jury convicted him on all charges after a four-day trial. The trial judge sentenced him to serve a lengthy prison term. Petitioner's motion for a new trial failed; the Massachusetts Appeals Court affirmed the conviction, see Commonwealth v. Scarpa, 30 Mass.App.Ct. 1106, 567 N.E.2d 1268 (1991) (table); and the Supreme Judicial Court (SJC) summarily denied petitioner's application for leave to obtain further appellate review (alofar), see Commonwealth v. Scarpa, 409 Mass. 1105, 571 N.E.2d 28 (1991).

Undaunted, Scarpa filed an application for a writ of habeas corpus in federal district court. After hearing arguments presented by Scarpa and by the Commonwealth, the district court granted the petition. It found that defense counsel's performance not only fell below an objectively reasonable standard of proficiency but also caused a breakdown in the adversarial system. This, the district judge thought, constituted prejudice per se. Accordingly, he vacated the conviction, ordered petitioner released from state custody, and directed the Commonwealth to retry him if it sought to exact further punishment. The court refused respondent's application for a stay, and petitioner is at liberty.

II. EXHAUSTION OF REMEDIES

The Commonwealth is the real party in interest in these proceedings, and we treat the case as if it were the named respondent. At the outset, the Commonwealth seeks to sidestep habeas relief by convincing us that petitioner failed to present his constitutional claim to the state courts before bolting to a federal forum. We are not persuaded.

A. Governing Principles.

Under our federal system, both the federal and state courts are entrusted with the protection of constitutional rights. See Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). In order to ease potential friction between these two sovereigns, a federal court will ordinarily defer action on a cause properly within its jurisdiction until the courts of another sovereign with concurrent powers, already cognizant of the litigation, have had an opportunity to pass upon the matter. See Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). This practice, reflecting concerns of comity, has been codified in 28 U.S.C. Sec. 2254, ² and memorialized in our case law, see, e.g., Mele v. Fitchburg Dist. Court, 850 F.2d 817, 819 (1st Cir.1988).

In order to present a federal claim to the state courts in a manner sufficient to satisfy exhaustion concerns, a petitioner must inform the state court of both the factual and legal underpinnings of the claim. See Picard v. Conner, 404 U.S. 270, 276-78, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). The test is substantive: was the claim presented in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question? See Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir.1989). While the answer to the question must not be made to depend on "ritualistic formality," id. at 1097, neither is the answer wholly in the eye of the beholder.

In Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.1987), we catalogued four ways in which the requirement of fair presentment may be fulfilled: "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." We did not, however, attribute exclusivity to this compendium. In Nadworny, 872 F.2d at 1099-1100, we mentioned a fifth possibility, namely, the assertion of a state law claim that is functionally identical to a federal claim. These possibilities recognize that certain constitutional violations have the capacity to rest on a variety of factual bases. While the facts and legal theories need not be propounded in precisely the same terms, fair presentation requires that the constitutional analysis necessary to resolve the ultimate question posed in the habeas petition and in the state court proceedings, respectively, be substantially the same. See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989).

B. Analysis.

Here, petitioner's odyssey through the Massachusetts court system involved a trial, a motion for a new trial, a full-dress appeal in the state appeals court, and an alofar. At all three post-trial stages, petitioner raised claims anent counsel's proficiency (or, more precisely put, counsel's lack of proficiency) and couched his claim in terms that remained largely unchanged. In his pleadings and memoranda at all three stages, petitioner alleged three principal shortcomings on counsel's part: a failure to attack the prosecution's star witness; a mindless solicitation to the jury to believe that star witness; and the ill-advised pursuit of a defense, not legally cognizable, that virtually conceded the elements of the charged offenses. Throughout the appellate process, petitioner described his claim as "ineffective assistance of counsel."

Moreover, at the first two stages he cited three state cases, Commonwealth v. Pope, 392 Mass. 493, 467 N.E.2d 117 (1984); Commonwealth v. Satterfield, 373 Mass. 109, 364 N.E.2d 1260 (1977); Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974), that dealt squarely with this issue. ³ In his motion for new trial, petitioner cited the Sixth Amendment by name, accompanying the motion with the affidavit of his trial counsel, Arthur Tacelli, attesting to Tacelli's self-professed ineffectiveness. Scarpa's federal habeas petition again asserted "ineffective assistance of counsel," and cited the same three factual bases in support of the assertion.

On these facts, we agree with the district judge that the arguments presented by pe...