Hall v. DiPaolo

• Court: Court of Appeals for the First Circuit
• Decided: February 24, 1993
• Docket: 92-1912
• Status: Published

Opinion

USCA1 Opinion

February 24, 1993

                            UNITED STATES COURT OF APPEALS
                                For The First Circuit

                                 ___________________

No. 92-1912

HERMAN HALL JR.,

                                Petitioner, Appellant,

                                          v.

                           SUPERINTENDENT PAUL L. DiPAOLO,

                                Respondent, Appellee.

__________________

The  opinion of this Court  issued on February  18, 1993, is
          amended as follows:

               On the cover  sheet, in  the caption, insert  a comma  after
          "HALL".

               Page 6, line 7, insert "of" between "notice appeal".

               Page 9, line 6, " a such" should read "such a".

February 18, 1993

                            UNITED STATES COURT OF APPEALS
                                For The First Circuit

                                 ___________________

No. 92-1912

HERMAN HALL, JR.,

                                Petitioner, Appellant,

                                          v.

                           SUPERINTENDENT PAUL L. DiPAOLO,

                                Respondent, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Herman H. Hall,  Jr., pro se on Application  for Certificate
               ___________________   ___ __
          of Probable Cause and brief.

__________________

                                  February 18, 1993
                                  __________________

Per Curiam.  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 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.

                                          I.

               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  (1990).    On  March  28,  1990,  the

          Massachusetts   Supreme  Judicial   Court  (SJC)   denied  Hall's

          application for further 

          appellate review. See 407  Mass. 1101 (1990).1   Hall then turned
                            ___
                              
          ____________________

               1We note that Hall, who was represented by appointed counsel
          at   trial  and  on  appeal,   filed  pro  se   briefs  with  the
                                                ___  __
          Massachusetts  Appeals Court  and Supreme  Judicial Court  (SJC).
          The Appeals Court considered and rejected the arguments raised in
          Hall's pro se brief in its decision  affirming Hall's conviction.
                 ___ __

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
          ____

____________________

          The SJC did not consider Hall's pro se brief; rather, that  court
                                          ___ __
          returned  Hall's brief  to him  while advising  Hall to  have his
          counsel raise his claims.

               2In addition to the five claims  enumerated above, Hall also
          alleged that the only  black juror was "terrorized" and  that the
          prosecution unlawfully erased portions  of the tape recordings of
          Hall's probable cause hearing.

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                                          3

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)(holding
          _____________________

          "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

          [application  for further  appellate  review]").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

____________________

               3While   the  district   court  did   not  identify   Hall's
          ineffective assistance of counsel claim, its finding that none of
          Hall's habeas claims were  raised within the four corners  of his
          application for further appellate review remains correct.    

               4Hall's second habeas petition did  not allege that the lone
          black juror had  been terrorized,  nor that  the prosecution  had
          erased any tapes.  The second habeas petition also challenged the
          sufficiency of the evidence at Hall's trial, a claim that was not
          presented in his first petition.    

                                         -4-
                                          4

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.

                                         II.

               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

____________________

               5This dismissal order  was entered before  Hall's objections
          to  the magistrate  judge's  report were  filed.   However,  that
          report gave Hall ten days from his receipt of the report in which
                                             _______
          to  file his objections.   Hall filed his  objections on April 6,
          1992,  within  the  requisite  ten days  (excluding  weekends  as
          required by Fed. R. Civ.  P. 6(a)) of his alleged receipt  of the
          report on March 25, 1992.

                                         -5-
                                          5

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, 109  S. Ct.  at 1046
                                      ______     ____

          (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.

               "[T]he exhaustion  doctrine requires that a  state defendant

          seeking to overturn his conviction on federal grounds first  must

____________________

               6Our descriptions of the substance of Hall's post-conviction
          motions  are drawn  from his  habeas petitions.  Their procedural
          history  in the  state  court is  disclosed by  the Massachusetts
          superior court  docket sheet appended to  the government's answer
          to Hall's first habeas petition.

                                         -6-
                                          6

give  the  state  courts 'a  fair  opportunity'  to consider  his

          claims.  (citation omitted).   This means that  the habeas corpus

          petitioner  must  have presented  the  substance  of his  federal

          constitutional claim to  the state appellate  courts so that  the

          state had the first chance  to correct the claimed constitutional

          error."  Lanigan  v. Maloney, 853  F.2d 40,  42 (1st Cir.  1988),
                   _______     _______

          cert. denied, 488 U.S.  1007 (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  (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  (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 (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

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                                          7

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;
                                                               ___

          Thigpen v. Thigpen, 926 F.2d 1003, 1010 n. 17 (11th Cir. 1991). 
          _______    _______

               Assuming that  neither of Hall's post-conviction motions can

          be fairly said to have raised his  federal habeas claims, Hall is

          now in the  position of  having to file  a third  post-conviction

          motion in  state  court.   Under  Massachusetts law,  a  criminal

          defendant  may file  a motion  for post-conviction relief  at any

          time,  however any grounds not raised in a defendant's first such

          motion  are  waived unless  (a)  the  trial  judge exercises  his

          discretion to allow said grounds to be heard on  their merits, or

          (b)  the defendant  shows  that  the  new  grounds  raised  in  a

          successive post-conviction  motion could not have  been raised in

          his first motion.  See Massachusetts R.  Crim. P. 30.  As most of
                             ___

          the  evidence Hall has submitted in support of his claims appears

          to  have  been available  to him  when he  filed his  first post-

          conviction motion, it appears likely that he will be held to have

          waived  his habeas  claims upon  filing a  third motion  with the

          superior court.   See,  e.g., Commonwealth v.  Deeran, 397  Mass.
                            ___   ____  ____________     ______

          136,  139  (1986)("[A]  defendant   must  assert  all  reasonably

          available grounds for post-conviction relief in his first rule 30

          motion,  or those  claims  are lost....This  waiver rule  applies

          equally to  constitutional claims  which could have  been raised,

          but    were   not    raised,   in   the    defendant's   original

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                                          8

motion.")(internal  citations  omitted).   If the  district court

          concludes  that the Massachusetts  courts are likely  to so hold,

          state  review  on the  merits would  no  longer be  available and

          exhaustion  could be found. See,  e.g., Engle v.  Isaac, 456 U.S.
                                      ___   ____  _____     _____

          107, 125-26 n. 28 (1982).   If exhaustion obtains through such  a

          procedural default, then Hall must show cause for his default and

          prejudice arising  therefrom before the district  court may reach

          the merits of  his claims.   Alternatively, he  must show that  a

          constitutional  violation has resulted  in his conviction despite

          his innocence.

               On  the  other  hand,  a  finding  that  Hall  has  actually

          exhausted his  state remedies may  be warranted if  Hall's second

          post-conviction motion  raised his  habeas claims and  his appeal

          from  the denial of that  motion has remained  pending since 1988

          without  justification.  See Dixon v. Florida, 388 F.2d 424, 425-
                                   ___ _____    _______

          26  (5th Cir. 1968)(noting that  exhaustion may result from lapse

          of  time where  state court  record disclosed  19 month  delay in

          processing of habeas  petitioner's post-conviction motion).   Cf.
                                                                        ___

          Odsen v. Moran, 445  F.2d 806, 807 (1st  Cir. 1971) (per  curiam)
          _____    _____

          (three  year delay  in processing  of habeas  petitioner's direct

          criminal appeal  may justify setting comity  aside and fashioning

          remedy according to circumstances).   Alternatively, we note that

          Hall submitted pro  se briefs to the  Massachusetts Appeals Court
                         ___  __

          (which considered  and rejected his  claims) and  to the  Supreme

          Judicial Court (which apparently  did not consider Hall's claims,

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                                          9

but rather  mailed Hall's brief  back to him).   If  these briefs

          were submitted  in connection  with Hall's appeal  on his  second

          post-conviction motion and raised Hall's habeas claims, then Hall

          could  be held to have exhausted his state remedies by submitting

          a pro  se brief to the SJC.   See Mele v.  Fitchburg Dist. Court,
            ___  __                     ___ ____     _____________________

          850 F.2d at 820, (habeas petitioner "must  fairly present - or do
                                                                      _____

          his  best to  present  -  "  habeas  claims  to  state's  highest
          _____________________

          court)(emphasis  supplied).    After  all,  exhaustion  does  not

          require  that the  SJC have  addressed or decided  Hall's federal

          claims. See Gagne v. Fair, 835 F.2d 6, 8 (1st Cir. 1987).   I   n
                  ___ _____    ____

          summation,  where  the  district   court  did  not  consider  the

          possibility  that  exhaustion  may have  obtained  through Hall's

          post-conviction motions, a remand is required.  

               Accordingly, the  petitioner's request for a  certificate of
               ____________________________________________________________

          probable cause is granted. The judgment of dismissal  is vacated.
          _________________________________________________________________

          The case is remanded for further proceedings consistent with this
          _________________________________________________________________

          opinion.
          ________

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