Roberts v. Grigas

Opinion

USCA1 Opinion

        March 24, 1995          [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 94-1818

                         JOSEPH ROBERTS, a/k/a JOSEPH CORAL,

                                Petitioner, Appellant,

                                          v.

                                 GEORGE GRIGAS, ETC.,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Valeriano Diviacchi on brief for appellant.
            ___________________
            Scott  Harshbarger, Attorney  General,  and  William J.  Duensing,
            __________________                           ____________________
        Assistant Attorney General, on brief for appellee.

____________________

____________________

Per Curiam.  In September  1984, petitioner, Joseph
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Roberts, was convicted of armed robbery.  His court-appointed

            attorney timely  filed a  notice of appeal.   Later,  counsel

            filed a  motion to  withdraw which the  Massachusetts Appeals

            Court  denied.    Ultimately,  the  Appeals  Court  dismissed

            petitioner's  appeal on  November  10,  1986,  counsel  never

            having filed a brief on petitioner's behalf.

                      Upon discovering this in 1991, petitioner filed, in

            the Appeals Court, a  pro se motion to reinstate  his appeal.

            In support, he argued that he had not authorized his attorney

            to  forego the direct appeal of his conviction.  As a result,

            petitioner  went on, his right to the effective assistance of

            counsel, as  secured by the Sixth  and Fourteenth Amendments,

            had  been violated.  The Appeals Court denied both the motion

            to reinstate  and a  subsequent request  for reconsideration.

            The  Massachusetts  Supreme  Judicial  Court  ("SJC")  denied

            petitioner's request for further appellate review.

                      In   April  1992,  petitioner   filed  this  habeas

            petition under 28  U.S.C.   2254.  He  again claimed that his

            court-appointed attorney's conduct had  been constitutionally

            defective.  The district court appointed counsel to represent

            petitioner, but  dismissed the habeas petition  on the ground

            that petitioner had not exhausted his state remedies.  See 28
                                                                   ___

            U.S.C.   2254(b).  Specifically, the court held that Mass. R.

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Crim. P. 30(b)1 provided petitioner with  a chance to present

            his  ineffective  assistance  claim  to  the  courts  of  the

            Commonwealth.  Thus, petitioner  was required to exhaust this

            remedy under   2254(c).2  We agree.

                      As a  matter of comity, "[t]he exhaustion principle

            ensures  that  state courts  have  the  first opportunity  to

            correct their own constitutional  errors."  Mele v. Fitchburg
                                                        ____    _________

            Dist. Court, 850 F.2d  817, 819 (1st Cir. 1988).  Although an
            ___________

            applicant  for the  writ  is not  required  to exhaust  every
                                                                    _____

            conceivable state procedure before filing his or her claim in

            federal court, the applicant "is at risk to present the state

            courts with  a fair  opportunity to  confront and  correct an

            alleged infirmity."  Id.  at 818-19.  Here, there  appears to
                                 ___

            be  no question  that petitioner's  motions alerted  both the

            Appeals Court and the SJC to the constitutional dimensions of

            his  ineffective  assistance of  counsel  claim.   Thus,  the

            question is  whether  the context  in  which this  claim  was

                                
            ____________________

            1.  Rule 30(b) provides:

                           New  Trial.   The  trial  judge upon
                           New  Trial.
                      motion in writing may  grant a new  trial
                      at  any time if  it appears  that justice
                      may not have been  done.  Upon the motion
                      the trial judge  shall make such findings
                      of fact  as are necessary to  resolve the
                      defendant's allegations of error of law.

            2.  Section 2254(c) provides that  "[a]n applicant shall  not
            be deemed to  have exhausted  the remedies  available in  the
            courts of the  State . . . if he has  the right under the law
            of  the  State to  raise,  by  any  available procedure,  the
            question presented."

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raised constitutes "fair presentation."  Castille v. Peoples,
                                                     ________    _______

            489 U.S. 346 (1989).

                      In  Castille, a     2254 petitioner  presented  new
                          ________

            constitutional  claims in  his request  for allocatur  to the

            Pennsylvania Supreme  Court;  such review  is  discretionary.

            The  United States  Supreme  Court held  that the  exhaustion

            requirement  is  not  satisfied  "where the  claim  has  been

            presented for the first and only time in a procedural context

            in  which its merits will not be considered unless `there are

            special  and  important  reasons  therefor.'"    Id.  at  351
                                                             ___

            (citation  omitted).   We  think  it  obvious  that when  the

            Appeals Court  considers a motion  to reopen or  reinstate an

            appeal five years after the appeal's dismissal, its review is

            discretionary.  The same goes  for the SJC's decision whether

            to grant further appellate review.   Consequently, petitioner

            has not exhausted his state remedies.

                      "The requisite exhaustion may nonetheless exist, of

            course,  if it  is clear  that [petitioner's] claims  are now

            procedurally barred under [Massachusetts] law."  See id.  Our
                                                             ___ ___

            task then  is to  determine whether the  Massachusetts courts

            would permit petitioner to  pursue his claim in a  Rule 30(b)

            motion.  "[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

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the merits of his claim."  Harris v. Reed, 489  U.S. 255, 268
                                       ______    ____

            (1989) (O'Connor, J., concurring).

                      In Commonwealth v. Cowie, 404 Mass. 119, 533 N.E.2d
                         ____________    _____

            1329  (1989), the  defendant,  whose direct  appeal had  been

            forfeited  by  his attorney,  filed a  motion  in the  SJC to

            reinstate his  appeal.  A  single justice  denied the  motion

            pointing out that the  post-conviction remedies in Rule 30(a)

            and  (b) were available.   Defendant then filed  a Rule 30(a)

            motion in the superior court in an effort to secure appellate

            review.  The court denied the motion for reasons not relevant

            here.  The defendant declined the superior court's invitation

            to file a Rule 30(b) motion, preferring to appeal to the SJC.

                      The  SJC first  rejected defendant's  argument that

            the  Constitution required  it  to provide  him  with a  late

            appeal.  404 Mass. at 121, 533  N.E.2d at 1331.  In so doing,

            it  relied on  Evitts v.  Lucey,  469 U.S.  387  (1985).   In
                           ______     _____

            Evitts, the Supreme Court  held that the Fourteenth Amendment
            ______

            due process clause is violated when a criminal defendant does

            not  have the effective assistance of counsel on an appeal as

            of right.  Id. at 396.  The Court noted, though, that a state
                       __

            need not provide the  defendant with a new appeal  so long as

            the substitute  relief is constitutionally adequate.   Id. at
                                                                   ___

            399.  As an example of such a remedy  the Court referred to a

            post-conviction attack on the conviction.  Id.  Based      on
                                                       ___

            this,  the SJC held that  Rule 30(b) "fully  accords with due

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process as a remedy  for the defendant's frustrated  right of

            appeal."  404 Mass. at 122-23, 533 N.E.2d at 1332.

                      Petitioner   correctly   points   out  that   where

            counsel's  dereliction  results  in  the  loss  of  a  direct

            criminal appeal, habeas relief is available without a showing

            that  the direct  appeal has  merit.   See Bonneau  v. United
                                                   ___ _______     ______

            States, 961 F.2d  17, 23 (1st Cir. 1992);  Wilbur v. State of
            ______                                     ______    ________

            Maine, 421 F.2d 1327, 1330  (1st Cir. 1970).  In Wilbur,  a  
            _____                                            ______

            2254 applicant alleged that his attorney had failed to pursue

            a direct appeal  from the applicant's  conviction.  As  here,

            the applicant filed a motion to reinstate the appeal, arguing

            that he had received ineffective  assistance of counsel.  The

            Maine Supreme  Judicial Court denied the  motion, noting that

            no injustice would result from its denial.

                      We  specifically  found   that  the  applicant  had

            presented his constitutional claims to the Maine SJC, thereby

            exhausting  state remedies.    421 F.2d  at  1330.   We  also

            rejected the  Maine SJC's indication  that the merits  of the

            applicant's direct appeal were relevant to a decision whether

            the applicant had received ineffective assistance of counsel.

            Id.  We therefore  remanded the matter to the  district court
            ___

            with  instructions to grant the  writ if the  state could not

            show  that the applicant's  ineffective assistance of counsel

            claim was  without merit and  if the  Maine Supreme  Judicial

            Court refused to reinstate the appeal.  Id.
                                                    ___

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Petitioner  asserts that,  contrary to  Wilbur, the
                                                              ______

            district  court here is requiring him to seek state review of

            the merits of his lost appeal via Rule 30(b).  We do not read
                ______

            the  district court's order in this way.  Although Cowie held
                                                               _____

            that  Rule 30(b)  is  an appropriate  substitute  for a  lost

            appeal,  there is no indication that Rule 30(b) is limited to

            the consideration of the  merits of the appeal.   Put another

            way,  Rule  30(b)   apparently  remains  available  for   the

            determination that petitioner received ineffective assistance

            of counsel -- the  prerequisite to obtaining state  review of
                               ____________

            petitioner's appellate  arguments.    We  finally  note  that

            although  Wilbur  contemplated  reinstatement of  the  direct
                      ______

            appeal, Castille now requires the exhaustion of Rule 30(b) in
                    ________

            this instance.

                      The  judgment  of the  district court  is summarily

            affirmed.  See Local Rule 27.1.
            ________   ___

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