March 24, 1995 [NOT FOR PUBLICATION]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.
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
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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