October 31, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1422
EDWARD DIPIETRO,
Petitioner, Appellant,
v.
WILLIAM COALTER,
Respondent, Appellee.
ERRATA SHEET
The opinion of this court issued on October 23, 1995 is amended
as follows:
On cover sheet, change "[Hon. Morris E. Lasker, U.S. District
Judge]" to "[Hon. Morris E. Lasker,* Senior U.S. District Judge].
*Senior U.S. District Judge, of the District of New York,
Southern District, sitting by designation."
October 23, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1422
EDWARD DIPIETRO,
Petitioner, Appellant,
v.
WILLIAM COALTER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
William J. Brown, Jr., and Marasi, Franco & Brown on brief for
appellant.
Scott Harshbarger, Attorney General, Margaret C. Parks, Assistant
Attorney General, and Gregory I. Massing, Assistant Attorney General,
on brief for appellee.
Per Curiam. Petitioner Edward DiPietro, a Massachusetts
inmate, appeals from the dismissal of his habeas petition as
containing both exhausted and unexhausted claims. For the
following reasons, we vacate and remand.
I.
On December 19, 1989, DiPietro pled guilty in Middlesex
Superior Court to indictments charging him with trafficking
in cocaine and possession of marijuana with intent to
distribute it. He was sentenced on March 2, 1990 to a term
of eighteen to twenty years imprisonment, with twelve years
to serve. Approximately two years later, DiPietro filed a
motion for new trial. This motion was denied, and DiPietro
unsuccessfully appealed to the Massachusetts Appeals Court.
See Commonwealth v. DiPietro, 624 N.E.2d 587 (Mass. App. Ct.
1993). On March 1, 1994, the Massachusetts Supreme Judicial
Court (SJC) denied DiPietro's application for leave to obtain
further appellate review (ALOFAR). See Commonwealth v.
DiPietro, 631 N.E.2d 58 (Mass. 1994).
DiPietro then turned to federal court. On April 15,
1995, DiPietro filed a habeas petition under 28 U.S.C. 2254
alleging that he was denied effective assistance of counsel
guaranteed by the Sixth Amendment because (a) trial counsel
had misrepresented, prior to DiPietro's guilty plea, that a
motion to suppress evidence had been filed and denied; (b)
counsel had misinformed him that pending state legislation
would deprive him of "good time" credits if he were convicted
after January 15, 1990; and (c) counsel had failed to file
appropriate pretrial motions and was generally unprepared.
The Commonwealth moved to dismiss the petition on the ground
that the latter two claims, although raised in the motion for
new trial and before the Massachusetts Appeals Court, were
not fairly presented in DiPietro's ALOFAR submitted to the
SJC. The district court concluded that DiPietro had indeed
failed to present these two claims adequately to the SJC and
dismissed the petition under Rose v. Lundy, 455 U.S. 509, 510
(1982) (holding that a district court must dismiss a petition
which contains any unexhausted claim).
II.
Under 28 U.S.C. 2254, a federal habeas petitioner must
first "exhaust[] the remedies available in the courts of the
State." See 28 U.S.C. 2254(b). To do so, the applicant
must present the highest state court with a "fair
opportunity" to confront and correct the alleged error. Mele
v. Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988).
In Mele, we mapped the contours of this requirement in the
context of prevailing Massachusetts appellate practice. The
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petitioner in Mele had raised a federal constitutional claim
before the Massachusetts Appeals Court but did not mention
the claim in his ALOFAR. We held 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 ALOFAR." Id. at 823.
The instant case is distinguishable from Mele in at
least two respects. First, DiPietro did not entirely omit
the claims at issue from his ALOFAR, but rather mentioned
them in a footnote which purported to incorporate by
reference arguments he made in his Massachusetts Appeals
Court brief. Second, it is undisputed that after DiPietro
filed his ALOFAR, the SJC requested from DiPietro, and
received, a copy of the intermediate court briefs and record
appendix. Nonetheless, the district court concluded that the
question whether DiPietro fairly presented his second and
third ineffective assistance claims in his ALOFAR must be
resolved without reference to his intermediate court brief
since no evidence exists that any justice of the SJC actually
referred to the brief. The district court further concluded
that these claims were not fairly presented within the ALOFAR
itself.1
1. We agree with the district court that DiPietro's footnote
presentation of his second and third claims, viewed in
isolation from the Appeals Court brief, is inadequate to
satisfy exhaustion concerns because it fails to identify the
factual and legal bases of these claims. See Scarpa v.
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We think that DiPietro did exhaust his second and third
ineffective assistance claims. Under the SJC's practice as
we understand it, the decision to grant or deny further
appellate review ordinarily is made solely on the basis of
the ALOFAR itself. Mele, 850 F.2d at 822 (citing Mass. R.
App. P. 27(e)). We have made it plain that we do not expect
the SJC "to scour the whole of the record below for potential
error beyond that called to the court's attention by the
applicant." Id. Where, as here, however, the SJC departs
from its practice and requests to see papers previously
filed, these papers are properly before it. DiPietro's
ALOFAR did alert the SJC to his second and third claims,
which were, in turn, adequately delineated in his
intermediate court brief provided to the SJC. Cf. Scarpa, 38
F.3d at 6 (stating that where petitioner identified a federal
basis for a claim in his motion for new trial, he provided a
backdrop against which his later state court filings had to
be viewed). Under the circumstances, we are persuaded that
the SJC had a "fair opportunity" to address these claims. We
add that the Commonwealth, having reconsidered its position
below, now urges us to find exhaustion.
Vacated and remanded. See Loc. R. 27.1.
Dubois, 38 F.3d 1, 6 (1st Cir. 1994), cert. denied, 115 S.
Ct. 940 (1995).
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