United States Court of Appeals
For the First Circuit
No. 99-2181
WILFRED EVICCI,
Petitioner,
v.
COMMISSIONER OF CORRECTIONS,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Wilfred Evicci on brief pro se.
September 22, 2000
Per Curiam. Evicci was convicted after jury trial in
a Massachusetts state court of rape, kidnapping and assault and
battery. The Massachusetts Appeals Court confirmed the
convictions on February 2, 1999, and the Massachusetts Supreme
Judicial Court (SJC) declined further appellate review on April
27, 1999. Evicci then filed a petition for habeas corpus in the
federal district court, which dismissed the petition on the
ground that Evicci had failed to exhaust state remedies with
respect to three of the four claims set forth in his petition.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Evicci now seeks
a certificate of appealability ("COA") from us under 28 U.S.C.
§ 2253(c), which pertinently requires that an applicant make "a
substantial showing of the denial of a constitutional right."
The district court's dismissal was based on the
procedural bar of lack of exhaustion. But in Slack v. McDaniel,
120 S. Ct. 1595, 1603 (2000), the Supreme Court held that an
erroneous procedural ruling does not necessarily preclude an
appellate court from considering whether a substantial showing
has been made of the denial of a constitutional right. Under
Slack, we must look further.
Evicci did not present three of his four claims to the
Massachusetts Appeals Court or to the SJC in his application for
further review, and, in that sense, Evicci did not exhaust his
-2-
state remedies. But because the state courts would deem
grounds not raised on the direct appeal to have been waived,
Commonwealth v. Gagliardi, 418 Mass. 562, 638 N.E.2d 20 (1994),
state remedies are no longer "available" within the meaning of
§ 2254(b)(1)(A). See O'Sullivan v. Boerckel, 526 U.S. 838, 847-
48 (1999); Carsetti v. Maine, 932 F.2d 1007, 1012 (1st Cir.
1991). There are, to be sure, exceptions to the waiver rule
under Massachusetts law, see, e.g., Commonwealth v. Graham, 431
Mass. 282, 287, 727 N.E.2d 51, 56 (2000), but Evicci does not
fit within any of them. Lacking "cause" for failing to raise
these three claims in state court, Evicci cannot now present
them in federal court. See Wainwright v. Sykes, 433 U.S. 72, 87-
91 (1977); cf. Coleman v. Thompson, 501 U.S. 722, 748 (1991).
Ordinarily, we would now turn to Evicci's Sixth
Amendment claim, which he did present in the state proceedings.
It is in fact a two-part claim: Evicci asserts that his rights
under the Confrontation Clause were violated by the trial
court's refusal to allow his attorney fully to explore drug use
on the part of the complaining witness; and he also asserts that
the attorney provided inadequate assistance, in violation of his
right to the effective assistance of counsel, by failing to
formulate and act upon an internally consistent defense
strategy. However, Evicci has not fully fleshed out his claims,
-3-
and the Commonwealth, in opposition in the district court,
declined to address the merits of any of Evicci's claims because
it relied solely on its lack of exhaustion rationale.
Although we could now call for memoranda from Evicci
and from the Commonwealth to illuminate the strength of the
Sixth Amendment claim, this would be an inefficient way to
handle the matter. We are not only without the district court's
assessment of the merits of the constitutional claim, but we
also lack most of the instruments that would be available to the
district court in making that assessment, including discovery,
a possible evidentiary hearing, and a possible report and
recommendation from a magistrate-judge. We do not even have
before us a transcript of the trial.
A very literal reading of section 2253(c) might lead
one to say that Evicci has therefore failed to justify the
issuance of a COA. Yet, in Slack v. McDaniel, the Supreme Court
took a practical approach to construing the statute and, after
finding that a procedural bar did not apply, itself remanded for
further development of the constitutional issue. Under the
present circumstances, we think that we have the authority to
grant the COA and to vacate the order dismissing the petition on
a procedural ground we find erroneous, leaving it to the
-4-
district court to reconsider Evicci's Sixth Amendment claim. 1
If this claim is resolved on the merits adversely to Evicci, he
may seek a COA in the district court and, failing that, in this
court.
We would not hesitate to deny a COA if we were sure
that the applicant had no reasonable basis for claiming that he
had been denied a constitutional right. However, in this
instance that branch of his claim based on the alleged
limitations on counsel's opportunity to explore drug use might
or might not have substance but, so far as it is explained, it
is not frivolous on its face. If the inadequate assistance
claim stood alone, we might say that the applicant failed to
provide us enough information to make even a colorable showing,
but, out of an abundance of caution, we think the district court
ought to address both claims since the matter must go back in
any event.
Nothing in this opinion is intended to suggest that the
applicant has made out a constitutional claim so substantial
that, had the claim had been rejected by the district court on
the merits, we would necessarily have granted a COA. And it
1
See Roberts v. Sutton, 217 F.3d 1337 (11th Cir. 2000);
Jefferson v. Welborn, 2000 WL 862846 at *3 (7th Cir. June 29,
2000); Lambright v. Stewart, 2000 WL 1118937 (9th Cir. Aug. 4,
2000); Hernandez v. Caldwell, 2000 WL 1218361 (4th Cir. Aug. 28,
2000); cf. Hall v. Cain, 2000 WL 815463 (5th Cir. July, 2000).
-5-
remains possible that there are other procedural or substantive
problems with the petition that the respondent may have asserted
or may wish to assert on remand. However, since the procedural
ruling cut short further proceedings and we think that ruling
was mistaken, further development of the issues should be done
in the first instance in the district court.
It is so ordered.
-6-