Campiti v. Matesanz

United States Court of Appeals
For the First Circuit

No. 02-1913

FRANCESCO CAMPITI,

Petitioner, Appellant,

v.

JAMES MATESANZ,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Dana A. Curhan, by appointment of the court, for petitioner.
Cathryn A. Neaves, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief
for respondent.

June 27, 2003
 BOUDIN, Chief Judge. This is an appeal from the district

court's denial of habeas relief to Francesco Campiti. The outcome

is certain but an opinion is warranted because of several

important, potentially recurring issues en route, two of which we

decide: one concerns the timeliness of the appeal and the other

the order in which claims of wrongfully withheld evidence are

addressed. The background events in the case can be briefly

stated.

Campiti was convicted in Massachusetts state court in

March 1989 of drug trafficking. At trial, two accomplices

testified against Campiti. One, Joseph Rego, testified that he

traveled three times with Campiti to Florida in 1986 where Campiti

acquired in total five kilograms of cocaine for Rego and others to

smuggle back to Boston. Joseph Labriola reported three more trips

in the same year, with Campiti or at his behest, to bring back

multiple kilograms of cocaine to Boston.

At trial, the jury also heard audio tapes in which

Campiti was heard to tell associates that he had given out "nine"

the previous day, this referring (in the prosecution's view) to

nine ounces of cocaine and also advising an associate to "talk in

riddles." The jury also learned of a November 1986 search of

Campiti's house and the house of another Campiti associate; the

latter yielded 412 grams of cocaine. After the search, the jury

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was told, Campiti fled to Florida, having altered his features and

assumed a false name.

Following his conviction, Campiti was sentenced to five

10-to-15-year terms in prison, four of which were to be served

consecutively. By post-trial motion and then in the Massachusetts

Appeals Court, Campiti made various claims including the one

central to his appeal in this court: that the prosecutor at trial

had failed to reveal useful impeachment information concerning John

Mace. Mace was a state police officer who had testified against

Campiti at trial by supplying, along with another testifying

officer, information that laid the background and served to

authenticate the audio tapes played at trial.

The impeachment information derived from an event on

October 23, 1989, some seven months after Campiti's conviction.

That evening, a young prosecutor, returning late to his office,

found Mace burning files and was attacked by Mace with a knife.

Mace had been burning records to conceal his embezzlement of funds

including, it turned out, some funds relating to Campiti's crimes.

Mace was convicted of embezzlement in March 1990. In Campiti's

post-trial proceedings and appeal, he argued that the underlying

embezzlement–-known at the time of trial only to Mace–-was

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impeachment evidence that had to be disclosed under Brady v.

Maryland, 373 U.S. 83 (1963).1

The state trial and appeals courts rejected the Brady

claim, the latter pointing out that the evidence against Campiti

was "voluminous." Campiti v. Commonwealth, 668 N.E.2d 1308, 1322

(Mass. App. Ct. 1994), review denied, 671 N.E.2d 951 (Mass. 1996).

Campiti then brought the present habeas action in the federal

district court. That court in turn denied relief, saying that Mace

was not a critical figure in the trial and that the other evidence

against Campiti was strong, Campiti v. Matesanz, 186 F. Supp. 2d.

29, 50-52 (D. Mass. 2002), but it granted a certificate of

appealability. We review the district court determination de novo.

Nadeau v. Matesanz, 289 F.3d 13, 15 (1st Cir. 2002).2

At the threshold, the state asserts that Campiti's appeal

is untimely so that we lack jurisdiction. After the district court

denied relief on February 28, 2002, Campiti filed a timely motion

for reconsideration, tolling the time to appeal; the motion was

denied on March 26, 2002, giving Campiti 30 days to appeal. Fed.

1
Campiti suggests that the other officers who testified in
support of the audio tapes may also have known about Mace's
thieving but turned a blind eye. He points to nothing to
substantiate this suggestion.
2
Under habeas law the underlying state court determinations
may be disregarded only to the extent that they are contrary to or
an incorrect application of clearly established federal law. See
28 U.S.C. § 2254(d)(1) (2000); McCambridge v. Hall, 303 F.3d 24, 35
(1st Cir. 2002) (en banc).

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R. App. P. 4(a)(1), 4(a)(4)(A)(iv). Before this denial Campiti had

sought, and the district court had granted, an extension of 120

days to file this appeal. Unfortunately, Rule 4 permits an

extension of only 30 days after the original 30 days for the appeal

expires or the motion is granted, so Campiti had at most until May

28, 2002, to appeal (the first business day after May 25). Fed. R.

App. P. 4(a)(5)(C), 26(a)(3).

Campiti's notice of appeal, filed on July 23, 2002, was

therefore untimely unless rescued by some other doctrine or device.

An appeal is normally taken by filing in the district court, within

the time allowed by Rule 4, a notice of appeal providing specified

information (primarily, parties, judgment appealed from, and court

to which the appeal is taken). Fed. R. App. P. 3(a)(1), (c)(1).

However, this requirement may be satisfied by the filing of the

"functional equivalent," so long as it gives the pertinent

information and evinces an intention to appeal. E.g., Smith v.

Barry, 502 U.S. 244, 248-49 (1992).

Here, Campiti relies on both his March 11, 2002, request

for an extension of time and his April 19, 2002, request for

appointment of counsel. Whether a particular type of document is

the functional equivalent of a notice of appeal may depend on its

content and surrounding circumstances rather than on any general

rule. Here, we bypass the question whether the request for an

extension satisfies the doctrine, an issue on which the circuits

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have taken different views,3 because we are satisfied that this

request for counsel does meet the requirements. Under the case

caption, the request read:

I am the petitioner in the above captioned
habeas corpus proceeding. My counsel, Vincent
Bongiorni, Esq., has been allowed to withdraw
by the court.

I am indigent and hereby request that the
court appoint counsel to represent me for the
purposes of filing a notice of appeal and a
request for a certificate of appealability. A
financial affidavit is attached for the
court's consideration.

This document plainly evidences an intention to appeal.

It asks for counsel to be appointed "for the purposes of filing a

notice of appeal" and for requesting a certificate of

appealability. See Ray v. Cowley, 975 F.2d 1478, 1478-79 (10th

Cir. 1992); United States v. Ward, 696 F.2d 1315, 1318 (11th Cir.

1983). Admittedly, the document does not specify the judgment

appealed from or the appellate court; but here, where no doubt

exists as to either, Rule 3 buttressed by latitude for a pro se

litigant forgives these "informalit[ies] of form." Fed. R. App. P.

3
Compare Harris v. Ballard, 158 F.3d 1164, 1166 (11th Cir.
1998) (motion for extension insufficient), with Listenbee v. City
of Milwaukee, 976 F.2d 348, 350-51 (7th Cir. 1992) (holding
opposite). Our own circuit, in a pre-Smith case, held that a
motion for an extension of a time could not be construed as the
notice itself. See Thomas v. Morton Int'l, Inc., 916 F.2d 39, 40
(1st Cir. 1990) (per curiam). We have no reason here to consider
whether that conclusion survives Smith.

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3(c)(4). See also Torres v. Oakland Scavenger Co., 487 U.S. 312,

316-17 (1988); Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir. 1990).

This brings us to the merits. Brady relief requires a

double showing, namely, that the prosecution wrongly withheld

evidence that it should have disclosed and that this caused

prejudice to the defendant. Strickler v. Greene, 527 U.S. 263,

281-82 (1999). Whether the prosecutor can be deemed to have

wrongly withheld information he does not possess where the

information is about unrelated crimes committed by his own

policeman-witness, is an unusual question with major ramifications.

Cf. Kyles v. Whitley, 514 U.S. 419, 438 (1995). Ordinarily, we

would bypass it in a case where--as here--the non-disclosure

plainly did not affect the result.

The state, which for future guidance wants a negative

answer to the question whether disclosure was required at all,

argues that we must decide whether such a rule exists and applies

to the case before reaching the prejudice question. The reasons

for the state's concern about future disclosure are obvious; but

the state may be wrong in thinking that a bright-line answer can be

provided for all cases in which the prosecutor is ignorant but

others connected with his side possess exculpatory information. In

all events, the state's claim that we must decide the "wrongful

withholding" issue first is ingenious but flatly wrong.

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 The state bases this priority claim on two Supreme Court

cases. One, Teague v. Lane, 489 U.S. 288, 307 (1989), bars habeas

relief except in narrow circumstances if the defendant relies on a

new rule of constitutional law established after his conviction.

See also 28 U.S.C. § 2254(d)(1); Horn v. Banks, 122 S.Ct. 2147,

2151 (2002) (per curiam). The other, Caspari v. Bohlen, 510 U.S.

383, 389-90 (1994), reversed a grant of habeas relief where the

circuit court failed to consider the state's argument that the

claim rested on a new constitutional rule and therefore that Teague

foreclosed a grant of relief. See also Horn, 122 S. Ct. at 2150-

51.

Since Caspari, two circuits have rejected the claim that

Caspari and Horn create some kind of absolute priority rule,

obligating a court to decide Teague issues before others, but one

circuit court said that the Teague issue must be resolved first,

and another may share the same view.4 We think that Caspari and

Horn have nothing to do with obligatory priorities: in both cases,

the lower courts had granted relief without considering seemingly

preserved Teague objections–-a straightforward merits error

compelling reversal. Neither Supreme Court case involved the lower

4
Compare Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir. 1995)
(en banc) and Townes v. Murray, 68 F.3d 840, 847-48 (4th Cir. 1995)
(rejecting such claims) with Sweet v. Delo, 125 F.3d 1144, 1155
(8th Cir. 1997), (accepting the claim) and Williams v. Cain, 229
F.3d 468, 472 (5th Cir. 2000) (leaning that way).

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court's denial of habeas relief on some ground that made it

unnecessary to reach Teague.

There is no obvious reason why there should be a

compulsory priority for Teague issues where the court can resolve

the matter on narrower or easier grounds. The suggestion has been

made that putting Teague first avoids deciding a constitutional

issue, i.e., whether the alleged new constitutional rule exists,

see Townes, 68 F.3d at 855 (concurring opinion). But avoiding

constitutional issues is a presumption, not a requirement, e.g.,

Harris v. United States, 122 S. Ct. 2406, 2413 (2002), and Teague

issues themselves involve readings of constitutional precedent.

Further, the avoidance precept itself is beside the point where, as

here, the shortcut to the result is a garden variety prejudice

issue.

Only as a last resort should the circuit courts read

Supreme Court decisions to create such mandatory priorities. A

circuit court judge may, in an average circuit, be responsible for

50 full-scale opinions a year and may vote on several hundred

merits cases. See 2002 Federal Courts Management Statistics 26.

Some circuits have heavier loads as do many district judges.

Anything that precludes judges from taking the shortest distance to

a result impairs their ability to give truly difficult cases the

time they require. In sum, we reject the state's claim that we

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must decide whether Teague bars the particular reading of Brady

that Campiti proffers.

Turning then to the issue of prejudice, we join both

state courts in this case and the district court in concluding that

Mace's wrongdoing, even if it had been confessed by Mace on the

witness stand, would not have altered the result. The audio tapes

did not depend on Mace–-a second officer also testified–-but even

if the tapes had been eliminated from the case, two accomplices

gave direct evidence against Campiti and, when his home was

searched, he fled from the state and assumed a new identity. The

outcome was inevitable.

Affirmed.

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