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unpublished decision.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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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.
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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.
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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.
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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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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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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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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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