United States Court of Appeals
For the First Circuit
No. 08-2219
JAMES D. CONINGFORD,
Petitioner, Appellant,
v.
STATE OF RHODE ISLAND,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Donna Jalbert Patalano and Law Office of D.J. Patalano on
brief for appellant.
Aaron L. Weisman, Assistant Attorney General, and Patrick C.
Lynch, Attorney General, on brief for appellee.
May 19, 2011
SELYA, Circuit Judge. Petitioner-appellant James D.
Coningford, a state prisoner, appeals from the denial of his
petition for habeas corpus. He posits that the improvident
admission of evidence of prior bad acts rendered his state trial
fundamentally unfair. We find his claim to be both unexhausted and
untenable and, accordingly, affirm the denial of habeas relief.
I. BACKGROUND
We rehearse only those facts necessary to place this
appeal into perspective. Readers who hunger for more exegetic
detail may consult the thorough opinion in which the Rhode Island
Supreme Court affirmed the petitioner's conviction on direct
review. See State v. Coningford, 901 A.2d 623, 625-27 (R.I. 2006).
In the underlying case, the state charged the petitioner
with second-degree child molestation. See R.I. Gen. Laws § 11-37-
8.3. The charge arose out of his behavior with a young boy, age
seven, who was a friend of his son. The complainant alleged that,
during several social visits at the petitioner's home, the
petitioner touched him inappropriately.
In a pretrial motion, the state asked the trial justice
to allow it to introduce at trial corroborative testimony from two
other young men. Each of the prospective witnesses would testify
that, when younger, he had been similarly molested by the
petitioner in the petitioner's abode.
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The state's proffer implicated Rhode Island Rule of
Evidence 404(b), which states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that the person acted
in conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake
or accident, or to prove that defendant feared
imminent bodily harm and that the fear was
reasonable.
The petitioner objected, arguing that the proffered evidence did
not fit into any of the exceptions to Rule 404(b)'s general bar for
prior bad acts but, rather, impermissibly tended to portray him as
"a bad man, [who] has a propensity toward sexual offenses and,
therefore, probably committed the offense with which he [was]
charged." State v. Quattrocchi, 681 A.2d 879, 886 (R.I. 1996).
Relatedly, he argued that the unfairly prejudicial effects of the
evidence overwhelmed any probative value.
The trial justice granted the state's motion. He ruled
(i) that the prior bad acts were sufficiently similar to the crime
charged to show a scheme, modus operandi, or common plan to molest
young boys in the petitioner's home, and (ii) that the probative
worth of this evidence outweighed any unfairly prejudicial effect.
The evidence was, therefore, admissible under Rule 404(b).
At trial, the state presented the prior bad acts evidence
along with the testimony of the complainant and an investigating
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detective. The petitioner did not testify, but moved
unsuccessfully for a judgment of acquittal. The jury found him
guilty, and the trial justice denied both his renewed motion for
acquittal and his motion for new trial. The trial justice
subsequently imposed a thirty-year sentence (twenty years to serve
and the balance suspended).
The petitioner appealed, challenging the admission of the
prior bad acts testimony under state evidentiary rules.1 The state
supreme court rejected this claim and affirmed the conviction.
Coningford, 901 A.2d at 625.
The petitioner repaired to the federal district court and
sought habeas relief. See 28 U.S.C. § 2254. In an artfully
crafted rescript, the district court concluded that the petitioner
had failed to exhaust his federal constitutional claim anent the
prior bad acts evidence and that, in all events, the claim lacked
merit. Coningford v. Rhode Island, No. 1:07-cv-167 (D.R.I. Aug.
26, 2008) (unpublished). This timely appeal followed, as to which
we granted a certificate of appealability.
II. ANALYSIS
As briefed by the parties, this appeal presents two
questions. The first involves whether the petitioner exhausted his
1
The petitioner also challenged the jury instructions on an
unrelated ground. Coningford, 901 A.2d at 629. That aspect of his
asseverational array is not relevant here.
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federal constitutional claim in state court. The second involves
whether that claim is meritorious. Our review of the district
court's disposition of those issues is de novo. Janosky v. St.
Amand, 594 F.3d 39, 43 (1st Cir. 2010).
A. Exhaustion.
In federal habeas cases, the starting point is the
traditional federal habeas statute, as modified by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214. The AEDPA instructs that habeas
relief "shall not be granted unless it appears that the applicant
has exhausted the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1)(A).2 This exhaustion requirement, which
codified preexisting law, is born of the principle "that as a
matter of comity, federal courts should not consider a claim in a
habeas corpus petition until after the state courts have had an
opportunity to act." Rose v. Lundy, 455 U.S. 509, 515 (1982). It
follows that a petitioner's failure to present his federal
constitutional claim to the state courts is ordinarily fatal to the
prosecution of a federal habeas case. Jackson v. Coalter, 337 F.3d
74, 86 (1st Cir. 2003).
2
There may be an exception to the exhaustion bar for cases
involving colorable claims of actual innocence. See, e.g., House
v. Bell, 547 U.S. 518, 522 (2006). No such claim is presented
here.
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To achieve exhaustion, "a habeas petitioner bears a heavy
burden to show that he fairly and recognizably presented to the
state courts the factual and legal bases of [his] federal claim."
Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). Without
suggesting that the enumeration is exclusive, we have identified at
least five ways in which a habeas petitioner may satisfy the "fair
presentment" requirement. These include reliance on a specific
provision of the Constitution, substantive and conspicuous
presentation of a federal constitutional claim, on-point citation
to federal constitutional precedents, identification of a
particular right specifically guaranteed by the Constitution, and
assertion of a state-law claim that is functionally identical to a
federal constitutional claim. Scarpa v. DuBois, 38 F.3d 1, 6 (1st
Cir. 1994). "The appropriate focus . . . centers on the likelihood
that the presentation in state court alerted that tribunal to the
claim's federal quality and approximate contours." Nadworny v.
Fair, 872 F.2d 1093, 1098 (1st Cir. 1989).
Before the state supreme court, the petitioner cited no
specific constitutional provision, tendered no substantive federal
claim, and relied on no federal constitutional precedent. He
strives to convince us, however, that by arguing generally that the
wayward introduction of prior bad acts evidence rendered his trial
unfair, he presented the state court with a claim based on a
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"particular right" guaranteed by the Constitution. We are not
persuaded.
It is common ground that the Constitution guarantees all
persons accused of crime the right to a fair trial. See U.S.
Const. amends. V, VI, XIV. But the petitioner's claim before the
state court bore no indicia of reliance on such a right. To the
contrary, he relied conspicuously and exclusively on state
evidentiary rules, accompanied by generalized plaints about
prejudice and unfairness. "Alleging lack of a fair trial does not
convert every complaint about evidence . . . into a federal due
process claim." Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir. 1984)
(quotation omitted). We hold, without serious question, that the
petitioner's vague and unfocused references to fairness were
insufficient to draw the state court's attention away from the
state-law raiment in which the petitioner cloaked his claim and
instead alert it to a possible federal constitutional claim.
Consequently, he did not achieve exhaustion through this medium.
See Adelson, 131 F.3d at 262-63; Nadworny, 872 F.2d at 1098.
The petitioner contends, in the alternative, that he
exhausted his federal constitutional claim by asserting a
functionally identical state-law claim. In advancing this
contention, he emphasizes the substantial similarities between
Rhode Island Rule of Evidence 404(b), upon which he relied in his
direct appeal, and Federal Rule of Evidence 404(b). See State v.
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Rodriguez, 996 A.2d 145, 151 n.9 (R.I. 2010) (noting that the
decisional framework for the state and federal evidentiary rules is
roughly the same); State v. Gaspar, 982 A.2d 140, 148 (R.I. 2009)
(similar).
Exhaustion through the assertion of a functionally
identical state-law claim demands more than mere "[f]amily
resemblances." Nadworny, 872 F.2d at 1100. "[F]air presentation
requires that the constitutional analysis necessary to resolve the
ultimate question posed in the habeas petition and in the state
court proceedings, respectively, be substantially the same."
Scarpa, 38 F.3d at 6; see Dutil v. Murphy, 550 F.3d 154, 158 (1st
Cir. 2008).
The petitioner's present claim is that the admission of
the prior bad acts evidence violated the Fifth, Sixth, and
Fourteenth Amendments. In the state supreme court, however, he
articulated his claim quite differently; he simply did not present
it in constitutional terms. Rather, he argued in terms of abuse of
discretion. The fact that he added the conclusory assertion that
the challenged evidence rendered his trial unfair was not enough to
transmogrify his garden-variety claim of evidentiary error into the
functional equivalent of a claim of constitutional magnitude. See
Barresi v. Maloney, 296 F.3d 48, 51-52 (1st Cir. 2002).
That ends this aspect of the matter. Because the
petitioner failed to present his federal claim to the state court
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"face-up and squarely," Martens v. Shannon, 836 F.2d 715, 717 (1st
Cir. 1988), it was properly dismissed as unexhausted.
B. The Merits.
The petitioner's failure to exhaust is, in itself,
sufficient to defeat his habeas petition. See Jackson, 337 F.3d at
86. But where, as here, a habeas petitioner's unexhausted claim is
patently without merit, the AEDPA allows a federal court, in the
interests of judicial economy, to dispose of that claim once and
for all. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State."); see also Granberry v. Greer, 481 U.S. 129,
135 (1987) (explaining that a federal habeas court may reach the
merits of an unexhausted claim "if it is perfectly clear that the
applicant does not raise even a colorable federal claim"). This is
such a case.
Federal habeas relief is available if the state court's
adjudication of the petitioner's claim is "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). The petitioner does not contend that the state
court's ruling was contrary to clearly established Supreme Court
precedent. The pertinent question, then, is whether the state
court indulged in an unreasonable application of federal law.
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"A state-court decision constitutes an unreasonable
application of clearly established federal law if it identifies the
correct rule, but applies that rule unreasonably to the facts of
the case sub judice." Janosky, 594 F.3d at 47 (citing Williams v.
Taylor, 529 U.S. 362, 407-08 (2000)). This standard "does not
demand infallibility: a state court's decision may be objectively
reasonable even if the federal habeas court, exercising its
independent judgment, would have reached a different conclusion."
Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002).
The petitioner assails the admission of the prior bad
acts evidence. He argues that no reasonable judge could have
viewed those acts as showing a common plan to molest young boys in
his home because he had also been charged (albeit separately) with
molesting a young girl.3 In his view, this misapplication of Rule
404(b) prejudiced him by leading the jury to believe that he had a
propensity to commit sex-related crimes. This, in turn, violated
his constitutionally protected right to a fair trial.4
3
Evidence of the alleged molestation of the young girl was
not introduced at the petitioner's trial. Moreover, if this
argument had any force — which it does not — it would be undercut
by the fact that the petitioner, in a separate proceeding, was
acquitted of that charge.
4
Our review does not encompass the petitioner's
straightforward claim, consistently argued by him, that the trial
justice misapplied Rhode Island Rule of Evidence 404(b). After
all, an error of state law, without more, is not enough to warrant
federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987). We consider
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To be sure, a misbegotten evidentiary ruling that results
in a fundamentally unfair trial may violate due process and, thus,
ground federal habeas relief. See Montana v. Egelhoff, 518 U.S.
37, 43 (1996); Petrillo v. O'Neill, 428 F.3d 41, 44 n.2 (1st Cir.
2005). But to trigger such relief, the state court's application
of state law must be "so arbitrary or capricious as to constitute
an independent due process . . . violation." Lewis v. Jeffers, 497
U.S. 764, 780 (1990). The Supreme Court has "defined the category
of infractions that violate 'fundamental fairness' very narrowly."
Dowling v. United States, 493 U.S. 342, 352 (1990). The state
court's decision in the instant case falls well outside these
narrow confines.
To begin, the petitioner does not identify any clearly
established Supreme Court case law speaking directly to the
admission of prior bad acts evidence. Indeed, the Court has
expressly declined to determine "whether a state law would violate
the Due Process Clause if it permitted the use of 'prior crimes'
evidence to show propensity to commit a charged crime." Estelle v.
McGuire, 502 U.S. 62, 75 n.5 (1991). The absence of an on-point
pronouncement from the Supreme Court leaves hanging by the slimmest
of threads the petitioner's claim that the state court's admission
of the prior bad acts evidence can be deemed an unreasonable
the claim of state-law error only insofar as it is part and parcel
of the overarching constitutional claim.
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application of the broader fair-trial principle. See Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
In an effort to shore up his position, the petitioner
argues that we should turn to case law at the circuit level to find
clearly established law. This argument reflects a triumph of hope
over reason. The AEDPA "requires that the relevant legal rule be
clearly established in a Supreme Court holding, rather than in
dictum or in holdings of lower federal courts." Ouber v. Guarino,
293 F.3d 19, 26 (1st Cir. 2002); see Lockyer v. Andrade, 538 U.S.
63, 71 (2003). While lower court precedents may provide "a
valuable reference point" when there is some doubt about the
meaning or scope of the relevant Supreme Court rule, Rashad, 300
F.3d at 35, they may not be used to fill a gap where, as here, the
Justices have expressly declined to lay down a rule. See Ouber,
293 F.3d at 26.
Because the Supreme Court has not laid down a governing
rule anent the admission of prior bad acts evidence, the broader
fair-trial principle is the beacon by which we must steer. We need
not linger long over this point; it is nose-on-the-face plain that
the state court's approval of the introduction of the prior bad
acts evidence in this case, whether or not an unarguably correct
evidentiary ruling, was well within the universe of plausible
evidentiary rulings. It was, therefore, not so arbitrary or
capricious as to work a denial of the petitioner's constitutionally
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secured fair-trial right. Consequently, the claim that the state
court unreasonably applied clearly established federal law is
hopeless.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we hold that the district court correctly denied the petition for
habeas relief.
Affirmed.
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