Adelson v. DiPaola

• Court: Court of Appeals for the First Circuit
• Decided: December 16, 1997
• Docket: 97-1536
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 97-1536



                                 LEONARD H. ADELSON,



                                Petitioner, Appellant,



                                          v.



                                  JAMES V. DIPAOLA,



                                Respondent, Appellee.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                              _________________________



               Kimberly Homan, with  whom Robert L. Sheketoff,  Sheketoff &
               ______________             ___________________   ___________

          Homan, Francis J. DiMento, and  DiMento & Sullivan were on brief,
          _____  __________________       __________________

          for appellant.

               William J.  Meade, Assistant Attorney  General, Commonwealth
               _________________

          of Massachusetts,  with whom Scott Harshbarger, Attorney General,
                                       _________________

          was on brief, for appellee.



                              _________________________


December 12, 1997

                              _________________________



SELYA, Circuit Judge.   Petitioner-appellant Leonard H.
                    SELYA, Circuit Judge.
                           _____________



          Adelson hatched a plan to film bouts between Russian and American



          pugilists  and   market  the  resultant  videotapes   to  Russian



          television  stations.   The  undercapitalized venture  was doomed



          from the opening  bell.  In  the aftermath  of its collapse,  the



          Commonwealth   of  Massachusetts   successfully  prosecuted   the



          petitioner on  charges of  larceny by check.   After  a fruitless



          pursuit of appellate remedies in the state courts, the petitioner



          sought habeas  corpus relief in  a federal forum, naming  a state



          correctional  official  as  the  respondent.   In  an  ore  tenus
                                                                 ___  _____



          decision, the district court dismissed the petition on the ground



          that it contained  an unexhausted claim.  The petitioner appeals.



          We affirm.



                                          I.
                                          I.
                                          __



                                 The Tale of the Tape
                                 The Tale of the Tape
                                 ____________________



                    Early   in  1993,   the  petitioner,   a  resident   of



          Massachusetts,  teamed up with Steven Eisner and Lawrence Meyers,



          both residents of  Arizona, to promote and  videotape prizefights



          between  American   and   Russian  boxers.     The   petitioner's



          responsibilities  included  underwriting the  project,  supplying



          Russian boxers, and  marketing videotapes of the bouts, for which



          he would  garner  the lion's  share of  the anticipated  profits.



          Eisner was  to receive a monthly salary, reimbursed expenses, and



          a  lesser  share  of  the  profits for  recruiting  the  American



          pugilists  and handling  the logistics  of  the matches.   Meyers



          agreed to film the fisticuffs in exchange for an up-front payment


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of $5,000 and a further  payment in approximately the same amount



          plus  expenses  (e.g.,  editing costs),  due  upon  production of



          commercially acceptable videotapes of a particular card of bouts.



                    In April 1993,  the petitioner transmitted a  check for



          $5,000 to Meyers  as an initial payment  and sent two checks  for



          $2,500 and $7,500,  respectively, to  Eisner.   All three  checks



          were  drawn  on  the  petitioner's  account  at  Cambridge  Trust



          Company,  a Massachusetts  bank,  and  were  intended  to  effect



          payment  for services  rendered or to  be rendered  in connection



          with boxing matches  scheduled to take place  in Laughlin, Nevada



          on April  28, 1993.   The payees negotiated  the checks.   In due



          course,  however,  Cambridge  Trust   returned  them,  unhonored,



          explaining  that  the  account  lacked  sufficient  funds.    The



          petitioner attributed  the incident to a bank error and persuaded



          Eisner and Meyers to go forward with the promotion.



                    The three men  met in Laughlin  on April  28.  At  that



          time, the petitioner  gave Meyers $3,000 in cash  and promised to



          pay  the  balance  of his  fee  by  wire transfer  the  next day.



          Although that  transfer  never materialized,  the petitioner  did



          send  a total of $13,000  to Eisner in  mid-May.  Eisner diverted



          $5,000  from  this sum  to  Meyers  to  cover  editing  expenses.



          Despite  the fact  that  he had  not  been paid  in full,  Meyers



          performed the  editing work and  delivered a single  videotape to



          the petitioner in Massachusetts with the hope that the petitioner


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could  sell it  and thereby  make  good on  the bounced  checks.1



          Meyers's hopes  soon were dashed:   the  petitioner's efforts  to



          market the  tape in  Russia proved  unavailing and he  thereafter



          turned a blind  eye to the insistent demand  letters forwarded by



          his erstwhile partners.



                    To  make a  tedious tale  tolerably  terse, Eisner  and



          Meyers  eventually  called  the three  dishonored  checks  to the



          attention  of  the  Massachusetts authorities.    In  turn, those



          financial  instruments formed the  predicate for three  counts of



          larceny by  check.   See Mass. Gen.  Laws ch.  266,    37 (1990).
                               ___



          Trial,  conviction, and  the  imposition  of  a  two-year  prison



          sentence  followed  apace.2    The  Massachusetts  Appeals  Court



          affirmed  the conviction, see Commonwealth v. Adelson, 666 N.E.2d
                                    ___ ____________    _______



          167 (Mass. App. Ct. 1996), and the Massachusetts Supreme Judicial



          Court  (SJC)  denied further  appellate review.   670  N.E.2d 966



          (Mass. 1996).



                    Undeterred by his lack of  success in the early rounds,



          the  petitioner applied  for habeas corpus  relief in  the United



          States District Court for the  District of Massachusetts.  See 28
                                                                     ___



          U.S.C.   2254 (1994 & Supp. II 1996).  He posited that  the state



          trial judge's  decision to  withhold from  the jury the  question



          whether  Massachusetts  courts  had subject  matter  jurisdiction

                              
          ____________________



               1While the exact amount of money that Adelson owed Meyers is

          disputed   by Meyers's reckoning, the  petitioner owed him $5,955

          for  services rendered after all sums  actually received had been

          credited   it is pellucid that Adelson never paid Meyers  in full

          for the videotaping services.



               2Execution of the sentence has been stayed.



                                          4



relieved the prosecution  of its burden to prove  each element of



          the criminal charges  and thus violated his right  to due process



          of  law under the Fourteenth  Amendment.  The petitioner bottomed



          this  claim  of   constitutional  error  on  an   assertion  that



          Massachusetts  case law deems  jurisdiction a substantive element



          of every criminal offense and that the prosecution therefore must



          prove its existence beyond a reasonable doubt.



                    The  district  court  dismissed  the  petition  without



          reaching  the  merits,   concluding  that  Adelson   inadequately



          presented his putative federal claim in the Massachusetts courts.



          Judge   Woodlock   did,   however,   grant   a   certificate   of



          appealability.  See 28 U.S.C.    2253(c); Fed. R. App.  P. 22(b).
                          ___



          This appeal ensued.



                                         II.
                                         II.
                                         ___



                                      Exhaustion
                                      Exhaustion
                                      __________



                    In recognition of  the state courts' important  role in



          protecting constitutional rights, the exhaustion principle holds,



          in  general,   that  a  federal  court  will   not  entertain  an



          application for  habeas relief  unless the  petitioner first  has



          fully exhausted his  state remedies in respect to  each and every



          claim contained within  the application.  See Rose  v. Lundy, 455
                                                    ___ ____     _____



          U.S.  509,  518-19  (1982).     Although  exhaustion  is  not   a



          jurisdictional bar  to federal  habeas review  of  a state  court



          conviction, it  is "the  disputatious sentry  [that] patrols  the



          pathways of  comity" between  the federal  and state  sovereigns.



          Nadworny v. Fair,  872 F.2d 1093, 1096 (1st Cir. 1989).  With few
          ________    ____


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exceptions   none  of which are applicable here    federal courts



          have  enforced   the  exhaustion  requirement   consistently  and



          rigorously.    See, e.g.,  Rose,  455  U.S.  at 518;  Martens  v.
                         ___  ____   ____                       _______



          Shannon, 836  F.2d 715,  718 (1st  Cir. 1988).    Thus, a  habeas
          _______



          petitioner  bears a  heavy  burden  to show  that  he fairly  and



          recognizably presented to the state courts  the factual and legal



          bases of this federal claim.  See Picard v. Connor, 404 U.S. 270,
                                        ___ ______    ______



          276-77 (1971); Nadworny, 872 F.2d at 1098.  To carry this burden,
                         ________



          the petitioner  must demonstrate that he tendered  each claim "in



          such a way as to make it probable that a reasonable  jurist would



          have  been alerted  to  the existence  of the  federal question."



          Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).
          ______    ______



                    Although  fair presentment  of  a claim  is obligatory,



          there  are   myriad  ways  in   which  that  phenomenon   can  be



          accomplished.  See Nadworny, 872 F.2d at 1097-98 (noting at least
                         ___ ________



          five ways in which a habeas petitioner satisfactorily can present



          a  federal claim  to  the  state courts).    But the  flexibility



          inherent  in this multi-channeled approach does not transform the



          exhaustion  requirement into  an  empty  formality.    A  federal



          court's calculation of  the probability that a  reasonable jurist



          would have discerned  the federal question from a  perusal of the



          petitioner's  relevant state-court  filings is  not  a matter  of



          guesswork.   Rather, that calculation is informed "by trappings  



          specific   constitutional   language,   constitutional  citation,



          appropriate   federal   precedent,   substantive   constitutional



          analogy,  argument with no  masking state-law character,  and the


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like."   Id.  at 1101.    The fewer  the trappings  that  adorn a
                   ___



          petitioner's  state-court filings, the  less likely that  we will



          find his federal claim to have been exhausted.



                    Although these general principles provide  a modicum of



          guidance, our  de novo  appellate review  of  a district  court's



          dismissal  of  a  habeas  petition  for  want  of  exhaustion  is



          necessarily  case-specific.  See id. at 1095.   We turn, then, to
                                       ___ ___



          the particulars of the case at hand.



                    In  the district  court, the  petitioner, citing  cases



          such  as Schad v.  Arizona, 501 U.S.  624, 638 (1991),  and In re
                   _____     _______                                  _____



          Winship, 397 U.S. 358, 364 (1970), articulated his constitutional
          _______



          claim in the following terms:  (1) Massachusetts case law defines



          jurisdiction as a  substantive element of all  criminal offenses;



          (2)  due process  requires  the  prosecution  to  prove  all  the



          substantive elements of an offense beyond a reasonable doubt; (3)



          and  therefore, in a Massachusetts criminal case, the prosecution



          must prove jurisdiction  beyond a reasonable doubt.3   Given this



          syllogism,  the petitioner posited  that the state  trial judge's



          preemption  of  the  jurisdictional  issue  and  his  concomitant



          refusal to  instruct the jury  on it relieved the  prosecution of



          its due-process-imposed  burden  to  prove  all  the  substantive

                              
          ____________________



               3We take  no view  of the  petitioner's characterization  of

          Massachusetts law.  We  note, however, that if Massachusetts  has

          not made  jurisdiction a  substantive element  of the  larceny by

          check offense, then the  petitioner's claim would appear  to turn

          on alleged errors of state, not  federal, law.  If this were  so,

          then federal habeas  review would not  be available to him.   See
                                                                        ___

          Estelle v. McGuire, 502 U.S.  62, 67-68 (1991); Lewis v. Jeffers,
          _______    _______                              _____    _______

          497 U.S. 764,  780-81 (1990); Puleio v. Vose, 830 F.2d 1197, 1204
                                        ______    ____

          (1st Cir. 1987).



                                          7



elements of the charged crimes.   This is an intriguing argument,



          and  one  that  clearly states  a  federal  constitutional claim.



          Whether the claim would have merit is, however, a different issue



            and one which, absent exhaustion, we need not decide.



                    The fly in the  ointment is that Adelson never  pitched



          this argument to the  Massachusetts courts.   This is not to  say



          that the argument is completely  alien to the state court record.



          In  his brief  to  the  Massachusetts Appeals  Court  and in  his



          unsuccessful application to the SJC for further appellate review,



          the petitioner set forth the factual underpinnings of his federal



          claim.  But setting forth the factual underpinnings of a claim is



          insufficient, in and of itself, to constitute fair presentment of



          that claim.   A habeas  petitioner must also elucidate  the legal



          foundation of his federal claim.  See Nadworny, 872 F.2d at 1096;
                                            ___ ________



          Gagne v. Fair, 835  F.2d 6, 7  (1st Cir. 1987).   It is on  these
          _____    ____



          shoals that the petitioner's quest founders.



                    Exhaustion obligations mandate that a habeas petitioner



          present, or  do his  best to  present, his  federal claim to  the



          state's highest tribunal.   See United States ex  rel. Kennedy v.
                                      ___ ______________________________



          Tyler, 269 U.S. 13, 17 (1925); Mele v. Fitchburg Dist. Court, 850
          _____                          ____    _____________________



          F.2d  817,  820 (1st  Cir.  1988).    Accordingly,  the  decisive



          pleading is the application for further appellate  review, and we



          must  determine  whether  the  petitioner  fairly  presented  the



          federal  claim to  the  SJC  within "the  four  corners" of  that



          application.    Mele,  850  F.2d  at  823.    In  this case,  the
                          ____



          petitioner  argued to  the SJC,  as he  did to  the Massachusetts


8



Appeals Court, that the Commonwealth's evidence could not support



          criminal jurisdiction  and that the  trial judge at  least should



          have  submitted the  jurisdictional issue  to the  jury    but he



          neither  premised  these   arguments  on  federal  constitutional



          grounds nor  provided any  signposts that  pointed  toward a  due



          process pathway to  reversal of his  conviction.  The  petitioner



          cited no  federal  cases,  made  no  mention  of  the  Fourteenth



          Amendment,  and eschewed  all references  to the  concept of  due



          process.  He instead relied  only upon Massachusetts case law and



          debated the assignment of error exclusively in state-law terms.



                    Under  these  circumstances,  we  cannot say  that  the



          petitioner  exhausted his  due process  claim.   It  is true,  of



          course, that deployment of federal  authority sometimes is not  a



          prerequisite to adequate presentation  of a federal claim to  the



          state  courts.   See Scarpa,  38 F.3d  at 7.   Nevertheless, such
                           ___ ______



          occasions will be  few and far between, and  they invariably will



          involve some suitable surrogate for explicit reference to federal



          authorities, say, an  emphasis on federal  due process rights  in



          the petitioner's  cited state cases  or an analysis of  state law



          that  adopts or parallels  federal constitutional analysis.   See
                                                                        ___



          Lanigan v.  Maloney, 853 F.2d 40,  44 (1st Cir. 1988);  Dougan v.
          _______     _______                                     ______



          Ponte,  727  F.2d 199,  201  (1st  Cir.  1984); cf.  Anderson  v.
          _____                                           ___  ________



          Harless, 459 U.S.  4, 7 n.3 (1982) (per curiam) ("We doubt that a
          _______



          defendant's citation to a  state-court decision predicated solely



          on state  law ordinarily will  be sufficient to fairly  apprise a



          reviewing court of  a potential federal claim  merely because the


9



defendant in the cited case advanced a federal claim.") (emphasis
                           _____



          in original).   No such  surrogate dwells in the  present record.



          Indeed,  in  his  application for  further  appellate  review the



          petitioner did not even attempt to analogize his state-law claims



          of error to a due process  violation.  This is simply not  enough



          to alert even  the most perspicacious of jurists  to the embedded



          constitutional claim.  See Nadworny, 872 F.2d at 1101.
                                 ___ ________



                    In a  desperate effort  to overcome  the fact  that any



          supposed presentation of  his federal claim to  the Massachusetts



          courts is masked, or, more accurately, completely camouflaged, by



          a dense state-law overlay, the petitioner maintains that  his use



          of  the  phrase "proof  beyond  a reasonable  doubt"  conjured up



          constitutional visions perceptible to any reasonable jurist, and,



          thus, saves the day.   We do not agree.  "Rhetoric arguing that a



          claim  previously asserted  without  federal  citation  or  other



          conspicuous  federal  emblemata   nonetheless  fell  within  some



          hypothetical  `mainstream' of  constitutional  litigation has  an



          oxymoronic quality."   Id. at 1098.   Consequently, we  regularly
                                 ___



          have  held, and  today  reaffirm, that  the  mere incantation  of



          constitutional   buzzwords,   unaccompanied    by   any   federal



          constitutional analysis, does  not suffice to carry the burden of



          demonstrating  fair presentment of  a federal claim.   See Gagne,
                                                                 ___ _____



          835 F.2d at  8; Dougan, 727 F.2d  at 201.  In all  events, to the
                          ______



          extent that the  "proof beyond a  reasonable doubt" mantra  might



          raise  a constitutional eyebrow,  the petitioner invoked  it only



          once,  in passing,  in  his brief  to  the Massachusetts  Appeals


10



Court, and not at all in his application to the SJC.   As we have



          warned  before,  "scatter[ing]  some  makeshift  needles  in  the



          haystack of the  state court record"  is not enough  to ground  a



          claim of exhaustion.  Martens, 836 F.2d at 717.
                                _______



                    The lack  of fair presentment  ends the matter.   While



          there  are occasional  exceptions  to the  exhaustion requirement



          (say, where exhaustion plainly would be futile or where the state



          has waived the requirement), the petitioner does not, and cannot,



          argue that any apply in this instance.   On the other hand, while



          the Antiterrorism and  Effective Death Penalty Act  of 1996, Pub.



          L.  No. 104-132,  110  Stat. 1214  (1996) (codified  in scattered



          sections  of  28  U.S.C.),  changes  preexisting  habeas  law  by



          conferring  upon federal courts express authorization to "den[y a



          habeas  petition] on the  merits, notwithstanding the  failure of



          the applicant to exhaust the  remedies available in the courts of



          the State," 28  U.S.C.   2254(b)(2),  we do  not think that  this



          case is an  appropriate candidate for the use of such power.  The



          petitioner's  federal  claim  flows  from   an  apparently  novel



          interpretation of Massachusetts law.  Assuming that he is not now



          procedurally   barred   from   presenting   his   claim   to  the



          Massachusetts courts   a matter on  which we express no opinion  



          we believe that  those tribunals are better situated  to test the



          petitioner's state-law hypothesis.  See Gagne, 835 F.2d at 10.
                                              ___ _____



                                         III.
                                         III.
                                         ____



                                      Conclusion
                                      Conclusion
                                      __________



                    We need go  no further.  Habeas  counsel often confront


11



an inhospitable legal  landscape, and the problem  is complicated



          by  the intricacies  of  the exhaustion  requirement.   We  must,



          however, apply that requirement impartially.  Here, only the most



          intrepid judicial spelunker could have picked a  path through the



          petitioner's state-law-strewn grotto and excavated a buried claim



          of constitutional error.  Because the  petitioner did not present



          his  federal claim  to  the  Massachusetts  courts  "face-up  and



          squarely," Martens, 836 F.2d at  717, the district court properly
                     _______



          dismissed his  habeas petition,  without prejudice,  for want  of



          exhaustion.


Affirmed.
          Affirmed.
          ________


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