Ralph Byrnes v. George Vose, Etc.

• Court: Court of Appeals for the First Circuit
• Decided: July 17, 1992
• Docket: 91-2246
• Status: Published

Opinion

USCA1 Opinion

July 17, 1992

____________________

No. 91-2246

                                    RALPH BYRNES,

                                Petitioner, Appellant,

                                          v.

                                  GEORGE VOSE, ETC.,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                                 Cyr, Circuit Judge,
                                      _____________
                             and Fuste,* District Judge.
                                         ______________

                                 ____________________

            Edward  J.  Romano  with  whom  Paul   DiMaio  was  on  brief  for
            __________________              _____________
        appellant.
            Aaron L.  Weisman, Special Assistant  Attorney General, with  whom
            _________________
        James E. O'Neil, Attorney General, was on  brief for appellee State of
        _______________
        Rhode Island.

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____________________

        _____________________

        *Of the District of Puerto Rico, sitting by designation.

Fust , District Judge.  Petitioner Ralph Byrnes appeals
                    _____________________

          a  Rhode Island federal district court decision dismissing his 28

          U.S.C.   2254 state conviction habeas corpus petition for failure

          to  first  exhaust state  postconviction  remedies.1   He  argues

          before us,  as he did before the district court, that it would be

          futile to  conduct further  collateral proceedings to  review his

          conviction in the  Rhode Island courts, since a codefendant, John

          Ouimette,  sought and  was denied  postconviction redress  in the

          state  courts prior  to successfully  receiving habeas  relief in

          federal  court.  See Ouimette v. Moran, 762 F.Supp. 468 (D.R.I.),
                           ___ _________________

____________________

             1 Section 2254(b) & (c) of Title 28 provide:

                          (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.   2254(b), (c).

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aff'd, 942  F.2d 1 (1st Cir.  1991).  The district  court decided
          _____

          that  the futility  exception to  the section  2254(b) exhaustion

          requirement  did not apply to  Byrnes since he  and Ouimette were

          convicted  of different  substantive  crimes  based on  different

          testimony.  Byrnes v.  Vose, 777 F.Supp.  171 (D.R.I. 1991).   We
                      _______________

          find no error  on the part of the district  court, and affirm the
                                                                 affirm

          dismissal  of  Byrnes'  state  conviction  federal  habeas corpus

          petition without prejudice.

                                          I.
                                          I.

                    Petitioner Byrnes was  convicted for his  participation

          in the notorious 1975 Bonded Vault Company robbery in Providence,

          Rhode  Island.   Nine masked  men entered  this commercial  safe-

          deposit company, robbed its employees at gunpoint, and broke into

          146 safety deposit boxes.  They stole approximately $4 Million in

          cash and valuables.   State v.  Byrnes, 433  A.2d 658, 661  (R.I.
                                ________________

          1981).2

                    Byrnes' petition for habeas relief is based on the same

          ground that  was successfully presented  in the federal  forum by
                                 
             ____________________

             2The  reader  who  wishes   to  delve  into  the  historical
             background of  the  matter on  appeal  is referred  to  this
             court's opinion in Ouimette  v. Moran, 942 F.2d 1  (1st Cir.
                                __________________
             1991), where we upheld the  district court's grant of habeas
             relief to  codefendant John F. Ouimette,  Ouimette v. Moran,
                                                       _________________
             762 F.Supp.  468 (D.R.I. 1991), as well as to the opinion of
             the Rhode Island  Supreme Court  which affirmed  appellant's
             state court conviction.  State v. Byrnes, 433 A.2d 658 (R.I.
                                      _______________
             1981).

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codefendant Ouimette after exhausting  state remedies.  He claims

          that the state prosecutor's failure to disclose a key prosecution

          witness' extensive criminal record violated his due process right

          under  Brady  v. Maryland,  373 U.S.  83  (1963).   Ouimette, 762
                 __________________                           ________

          F.Supp. at 479-80; 942 F.2d at 12-13.  

                    The   record  developed  by   the  district  court  and

          confirmed by us  during oral argument shows, however, that Byrnes

          and Ouimette were convicted of different levels of involvement in

          the  robbery.   Ouimette  was not  a  participant in  the  actual

          robbery.   He  was convicted  as a  conspirator and  an accessory

          before  the fact.   The  testimony that  brought about  the Brady
                                                                      _____

          claim  was  that of  Robert Dussault,  and  he did  not implicate

          Byrnes.    Byrnes,  in  contrast,  was  convicted  as  an  actual

          participant in the robbery, primarily because of the testimony of

          another participant,  Anthony Danese.   Clearly, the  evidence at

          trial against Byrnes and  Ouimette was not  the same.  Byrnes  v.
                                                                 __________

          Vose, 777 F.Supp. at 172.  
          ____

                    Petitioner  Byrnes also  conceded during  oral argument

          that,  especially after  the  federal court  habeas decisions  in

          Ouimette,  petitioner has a strong due process argument in either
          ________

          federal or state forums.  Notwithstanding, petitioner's  argument

          is to  the effect  that because  of the egregious  nature of  the

          state  prosecutor's  conduct,  it  would  be  futile  to  subject

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petitioner  to  further  state  court  proceedings  to  determine

          whether  the errors at  trial were "harmless  beyond a reasonable

          doubt."  See Chapman v. California, 386 U.S. 18, 24 (1967).
                   ___ _____________________

                    In Duckworth v.  Serrano, 454 U.S.  1, 3-4 (1981)  (per
                       _____________________

          curiam), the  United States  Supreme Court  refused to  create an

          exception to the exhaustion requirement where a "clear violation"

          of  the defendant's  constitutional rights  is established.   The

          Court  found that  "obvious constitutional  errors, no  less than

          obscure  transgressions, are  subject  to the  requirements of   

          2254(b)," thus obligating the  lower court to dismiss  the habeas

          petition.   Id.  at  4.   The  Court  also rejected  an  argument
                      ___

          favoring  exception  to  the  exhaustion   requirement  based  on

          judicial economy.  The Court noted that such a rule  would likely

          increase, rather than decrease, federal habeas corpus  petitions,

          since  defendants could  first  seek a  federal determination  of

          whether  the claim  reached the  requisite level  of  validity to

          dispense  with the  exhaustion requirement.   Finally,  the Court

          noted  that even in  the case where  a clear  violation is found,

          considerations of  comity require  that state courts  be afforded

          the   opportunity,  in   the   first  instance,   to  correct   a

          constitutional violation before a  federal court intervenes.  Id.
                                                                        ___

          See also  Picard v. Connor, 404 U.S. 270, 275 (1971); Nadworny v.
          ________  ________________                            ___________

          Fair,  872  F.2d 1093,  1096  (1st  Cir. 1989)  ("Requiring  that
          ____

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remedies  be  exhausted  in   state  courts  is  merely  comity's

          juridical tool, embodying the federal sovereign's respect for the

          state courts' capability to adjudicate federal rights."); Mele v.
                                                                    _______

          Fitchburg  District Court, 850 F.2d  817, 819-20 (1st Cir. 1988).
          _________________________

          We  think that  petitioner's futility  argument is  foreclosed by

          Duckworth and should be rejected.
          _________

                                         II.
                                         II.

                    With  respect   to  the   "egregious"  nature   of  the

          prosecution  misconduct at the state trial, we find no basis, nor

          has petitioner proffered any,  as to why the Rhode  Island courts

          are not fully capable of determining whether the misconduct found

          in Ouimette "tainted" Byrnes' conviction sufficiently to  require
             ________

          habeas relief.3   To the  extent that petitioner  is asking  this

          court to examine the merits of his claim without first presenting

          it  in  the  state judicial  forum,  we  think  the reasoning  of

          Duckworth  with   respect  to   "clear  violations"   is  equally
          _________

          applicable to "egregious" ones  and petitioner must first exhaust

          state judicial remedies before seeking redress in federal court.

                    Petitioner has  failed to convince us  that recourse to

          the  state postconviction  proceedings available in  Rhode Island

          dooms him to the same fate  as that originally suffered there  by

          codefendant Ouimette.  In fact, events subsequent to our decision
                                 
             ____________________

             3At  oral argument,  counsel for petitioner  suggested that,
             based  on all that had transpired with respect to this case,
             "politics may rear its ugly head" and deny petitioner a fair
             opportunity  to  prosecute his  claim  in  the Rhode  Island
             courts.   No  evidence  has been  proposed  to support  this
             proposition   and,   accordingly,  we   reject  petitioner's
             suggestion that the  Rhode Island courts will not fairly and
             impartially discharge their duty of  applying the law to the
             facts placed before it.

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in Ouimette suggest that the Rhode Island judiciary has seriously
             ________

          addressed  the  issues  raised  in  the  Ouimette  federal  court
                                                   ________

          decisions.   Following  our affirmance  of the  Ouimette district
                                                          ________

          court decision,  the Chief  Justice of  the Rhode Island  Supreme

          Court ordered the Rhode Island Commission on  Judicial Tenure and

          Discipline   to  investigate   the   underlying  allegations   of

          prosecutorial misconduct.   A report  has been  rendered and  the

          same  has been reviewed and  adopted by the  Rhode Island Supreme

          Court.  In re DeRobbio, 604 A.2d 1240 (R.I. 1992).  
                  ______________

                    We are  convinced that the Rhode  Island judiciary will

          insure  that this matter  receives careful judicial consideration

          and  that  with  respect   to  criminal  prosecutions  under  its

          jurisdiction, "justice [will] satisfy the appearance of justice."

          Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864
          ______________________________________________

          (1988)  (quoting In  re  Murchison,  349  U.S.  133,  136  (1955)
                           _________________

          (quoting Offut v. United States, 348 U.S. 11, 14 (1948))).  
                   ______________________

                    At   this  time,  we   have  no  basis   to  find  that

          petitioner's due process claim  will not receive a full  and fair

          hearing before the state  tribunals of Rhode Island.   We express

          no view on the question whether the circumstances of Ouimette and

          Byrnes were  sufficiently similar as  to require  the same  legal

          result.  

                    Petitioner's dismissal  of his 28 U.S.C.    2254 habeas

          corpus petition against his state conviction is now Affirmed.
                                                              Affirmed
                                                              ________

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