DiPietro v. Coalter

Opinion

USCA1 Opinion

October 31, 1995      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1422 



                                   EDWARD DIPIETRO,



                                Petitioner, Appellant,



                                          v.



                                   WILLIAM COALTER,



                                Respondent, Appellee.


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                                     ERRATA SHEET


The opinion of  this court issued on  October 23, 1995 is  amended

        as follows:



            On  cover sheet,  change "[Hon.  Morris E.  Lasker,  U.S. District
                                                                 _____________

        Judge]" to "[Hon. Morris E. Lasker,* Senior U.S. District Judge].
        _____                                __________________________



            *Senior  U.S.  District  Judge,  of  the  District  of  New  York,

        Southern District, sitting by designation."



October 23, 1995        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1422 



                                   EDWARD DIPIETRO,



                                Petitioner, Appellant,



                                          v.



                                   WILLIAM COALTER,



                                Respondent, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Morris E. Lasker, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            William J.  Brown, Jr., and  Marasi, Franco  & Brown on  brief for
            ______________________       _______________________

        appellant.

            Scott  Harshbarger, Attorney General, Margaret C. Parks, Assistant
            __________________                    _________________

        Attorney General, and Gregory  I. Massing, Assistant Attorney General,
                              ___________________

        on brief for appellee.


____________________



____________________


Per Curiam.  Petitioner Edward DiPietro, a Massachusetts
                 __________



            inmate, appeals from the dismissal of his habeas  petition as



            containing both  exhausted and  unexhausted claims.   For the



            following reasons, we vacate and remand.



                                          I.



                 On December 19, 1989,  DiPietro pled guilty in Middlesex



            Superior Court  to indictments charging him  with trafficking



            in  cocaine  and  possession  of  marijuana  with  intent  to



            distribute  it.  He was sentenced on  March 2, 1990 to a term



            of eighteen  to twenty years imprisonment,  with twelve years



            to serve.   Approximately two  years later, DiPietro  filed a



            motion for new trial.   This motion was denied,  and DiPietro



            unsuccessfully  appealed to the  Massachusetts Appeals Court.



            See Commonwealth  v. DiPietro, 624 N.E.2d 587 (Mass. App. Ct.
            ___ ____________     ________



            1993).  On March 1, 1994,  the Massachusetts Supreme Judicial



            Court (SJC) denied DiPietro's application for leave to obtain



            further  appellate  review  (ALOFAR).    See  Commonwealth v.
                                                     ___  ____________



            DiPietro, 631 N.E.2d 58 (Mass. 1994).  
            ________



                 DiPietro then  turned to  federal court.   On  April 15,



            1995, DiPietro filed a habeas petition under 28 U.S.C.   2254



            alleging that  he was denied effective  assistance of counsel



guaranteed by  the Sixth Amendment because  (a) trial counsel



            had misrepresented,  prior to DiPietro's guilty  plea, that a



            motion to  suppress evidence had  been filed and  denied; (b)



            counsel  had misinformed  him that pending  state legislation



            would deprive him of "good time" credits if he were convicted



            after  January 15, 1990; and  (c) counsel had  failed to file



            appropriate  pretrial motions  and was  generally unprepared.



            The Commonwealth moved to dismiss the petition  on the ground



            that the latter two claims, although raised in the motion for



            new trial  and before  the Massachusetts Appeals  Court, were



            not fairly  presented in  DiPietro's ALOFAR submitted  to the



            SJC.  The  district court concluded that  DiPietro had indeed



            failed  to present these two claims adequately to the SJC and



            dismissed the petition under Rose v. Lundy, 455 U.S. 509, 510
                                         ____    _____



            (1982) (holding that a district court must dismiss a petition



            which contains any unexhausted claim).  



                                         II.



                 Under 28 U.S.C.   2254, a federal habeas petitioner must



            first "exhaust[] the remedies available in  the courts of the



            State."   See 28 U.S.C.    2254(b).  To do  so, the applicant
                      ___



            must   present  the   highest  state   court  with   a  "fair



            opportunity" to confront and correct the alleged error.  Mele
                                                                     ____



            v.  Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988).
                _____________________



            In  Mele, we mapped the  contours of this  requirement in the
                ____



            context  of prevailing Massachusetts appellate practice.  The


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petitioner in Mele had  raised a federal constitutional claim
                          ____



            before the  Massachusetts Appeals  Court but did  not mention



            the claim  in his ALOFAR.   We  held that "an  appealed issue



            cannot be  considered as having been fairly  presented to the



            SJC for  exhaustion purposes unless the  applicant has raised



            it within the four corners of the ALOFAR."  Id. at 823.  
                                                        ___



                 The  instant case  is  distinguishable from  Mele in  at
                                                              ____



            least  two respects.   First, DiPietro did  not entirely omit



            the  claims at  issue from  his ALOFAR, but  rather mentioned



            them  in  a  footnote   which  purported  to  incorporate  by



            reference  arguments  he made  in  his Massachusetts  Appeals



            Court brief.   Second, it  is undisputed that  after DiPietro



            filed  his  ALOFAR,  the  SJC requested  from  DiPietro,  and



            received, a copy of the  intermediate court briefs and record



            appendix.  Nonetheless, the district court concluded that the



            question whether  DiPietro  fairly presented  his second  and



            third  ineffective assistance  claims in  his ALOFAR  must be



            resolved  without reference  to his intermediate  court brief



            since no evidence exists that any justice of the SJC actually



            referred  to the brief.  The district court further concluded



            that these claims were not fairly presented within the ALOFAR



            itself.1  



                                
            ____________________



            1.  We agree with the district court that DiPietro's footnote

            presentation  of  his  second  and third  claims,  viewed  in

            isolation  from the  Appeals  Court brief,  is inadequate  to

            satisfy exhaustion concerns because  it fails to identify the

            factual  and  legal bases  of these  claims.   See  Scarpa v.
                                                           ___  ______



                                         -5-



We think that DiPietro did exhaust  his second and third



            ineffective assistance  claims.  Under the  SJC's practice as



            we  understand it,  the  decision to  grant  or deny  further



            appellate review ordinarily  is made solely  on the basis  of



            the ALOFAR itself.   Mele, 850 F.2d  at 822 (citing  Mass. R.
                                 ____



            App. P. 27(e)).  We have made it  plain that we do not expect



            the SJC "to scour the whole of the record below for potential



            error beyond  that  called to  the court's  attention by  the



            applicant."   Id.  Where,  as here, however,  the SJC departs
                          ___



            from  its  practice and  requests  to  see papers  previously



            filed,  these  papers are  properly  before  it.   DiPietro's



            ALOFAR  did alert  the SJC  to his  second and  third claims,



            which   were,  in   turn,   adequately   delineated  in   his



            intermediate court brief provided to the SJC.  Cf. Scarpa, 38
                                                           ___ ______



            F.3d at 6 (stating that where petitioner identified a federal



            basis for a claim in his motion for new trial,  he provided a



            backdrop against which his later  state court filings had  to



            be viewed).  Under  the circumstances, we are persuaded  that



            the SJC had a "fair opportunity" to address these claims.  We



            add that  the Commonwealth, having reconsidered  its position



            below, now urges us to find exhaustion.



                 Vacated and remanded.  See Loc. R. 27.1.
                 _____________________  ___


____________________



            Dubois,  38 F.3d 1, 6  (1st Cir. 1994),  cert. denied, 115 S.
            ______                                   ____________

            Ct. 940 (1995).



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