USCA1 Opinion
July 17, 1992
____________________
No. 91-2246
RALPH BYRNES,
Petitioner, Appellant,
v.
GEORGE VOSE, ETC.,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr, Circuit Judge,
_____________
and Fuste,* District Judge.
______________
____________________
Edward J. Romano with whom Paul DiMaio was on brief for
__________________ _____________
appellant.
Aaron L. Weisman, Special Assistant Attorney General, with whom
_________________
James E. O'Neil, Attorney General, was on brief for appellee State of
_______________
Rhode Island.
____________________
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.
Fust , District Judge. Petitioner Ralph Byrnes appeals
_____________________
a Rhode Island federal district court decision dismissing his 28
U.S.C. 2254 state conviction habeas corpus petition for failure
to first exhaust state postconviction remedies.1 He argues
before us, as he did before the district court, that it would be
futile to conduct further collateral proceedings to review his
conviction in the Rhode Island courts, since a codefendant, John
Ouimette, sought and was denied postconviction redress in the
state courts prior to successfully receiving habeas relief in
federal court. See Ouimette v. Moran, 762 F.Supp. 468 (D.R.I.),
___ _________________
____________________
1 Section 2254(b) & (c) of Title 28 provide:
(b) An application for a writ of
habeas corpus in behalf of a person in
custody pursuant to the judgment of a
State court shall not be granted unless
it appears that the applicant has
exhausted the remedies available in the
courts of the State, or that there is
either an absence of available State
corrective process or the existence of
circumstances rendering such process
ineffective to protect the rights of the
prisoner.
(c) An applicant shall not be deemed
to have exhausted the remedies available
in the courts of the State, within the
meaning of this section, if he has the
right under the law of the State to
raise, by any available procedure, the
question presented.
28 U.S.C. 2254(b), (c).
2
aff'd, 942 F.2d 1 (1st Cir. 1991). The district court decided
_____
that the futility exception to the section 2254(b) exhaustion
requirement did not apply to Byrnes since he and Ouimette were
convicted of different substantive crimes based on different
testimony. Byrnes v. Vose, 777 F.Supp. 171 (D.R.I. 1991). We
_______________
find no error on the part of the district court, and affirm the
affirm
dismissal of Byrnes' state conviction federal habeas corpus
petition without prejudice.
I.
I.
Petitioner Byrnes was convicted for his participation
in the notorious 1975 Bonded Vault Company robbery in Providence,
Rhode Island. Nine masked men entered this commercial safe-
deposit company, robbed its employees at gunpoint, and broke into
146 safety deposit boxes. They stole approximately $4 Million in
cash and valuables. State v. Byrnes, 433 A.2d 658, 661 (R.I.
________________
1981).2
Byrnes' petition for habeas relief is based on the same
ground that was successfully presented in the federal forum by
____________________
2The reader who wishes to delve into the historical
background of the matter on appeal is referred to this
court's opinion in Ouimette v. Moran, 942 F.2d 1 (1st Cir.
__________________
1991), where we upheld the district court's grant of habeas
relief to codefendant John F. Ouimette, Ouimette v. Moran,
_________________
762 F.Supp. 468 (D.R.I. 1991), as well as to the opinion of
the Rhode Island Supreme Court which affirmed appellant's
state court conviction. State v. Byrnes, 433 A.2d 658 (R.I.
_______________
1981).
-3-
3
codefendant Ouimette after exhausting state remedies. He claims
that the state prosecutor's failure to disclose a key prosecution
witness' extensive criminal record violated his due process right
under Brady v. Maryland, 373 U.S. 83 (1963). Ouimette, 762
__________________ ________
F.Supp. at 479-80; 942 F.2d at 12-13.
The record developed by the district court and
confirmed by us during oral argument shows, however, that Byrnes
and Ouimette were convicted of different levels of involvement in
the robbery. Ouimette was not a participant in the actual
robbery. He was convicted as a conspirator and an accessory
before the fact. The testimony that brought about the Brady
_____
claim was that of Robert Dussault, and he did not implicate
Byrnes. Byrnes, in contrast, was convicted as an actual
participant in the robbery, primarily because of the testimony of
another participant, Anthony Danese. Clearly, the evidence at
trial against Byrnes and Ouimette was not the same. Byrnes v.
__________
Vose, 777 F.Supp. at 172.
____
Petitioner Byrnes also conceded during oral argument
that, especially after the federal court habeas decisions in
Ouimette, petitioner has a strong due process argument in either
________
federal or state forums. Notwithstanding, petitioner's argument
is to the effect that because of the egregious nature of the
state prosecutor's conduct, it would be futile to subject
-4-
4
petitioner to further state court proceedings to determine
whether the errors at trial were "harmless beyond a reasonable
doubt." See Chapman v. California, 386 U.S. 18, 24 (1967).
___ _____________________
In Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981) (per
_____________________
curiam), the United States Supreme Court refused to create an
exception to the exhaustion requirement where a "clear violation"
of the defendant's constitutional rights is established. The
Court found that "obvious constitutional errors, no less than
obscure transgressions, are subject to the requirements of
2254(b)," thus obligating the lower court to dismiss the habeas
petition. Id. at 4. The Court also rejected an argument
___
favoring exception to the exhaustion requirement based on
judicial economy. The Court noted that such a rule would likely
increase, rather than decrease, federal habeas corpus petitions,
since defendants could first seek a federal determination of
whether the claim reached the requisite level of validity to
dispense with the exhaustion requirement. Finally, the Court
noted that even in the case where a clear violation is found,
considerations of comity require that state courts be afforded
the opportunity, in the first instance, to correct a
constitutional violation before a federal court intervenes. Id.
___
See also Picard v. Connor, 404 U.S. 270, 275 (1971); Nadworny v.
________ ________________ ___________
Fair, 872 F.2d 1093, 1096 (1st Cir. 1989) ("Requiring that
____
-5-
5
remedies be exhausted in state courts is merely comity's
juridical tool, embodying the federal sovereign's respect for the
state courts' capability to adjudicate federal rights."); Mele v.
_______
Fitchburg District Court, 850 F.2d 817, 819-20 (1st Cir. 1988).
_________________________
We think that petitioner's futility argument is foreclosed by
Duckworth and should be rejected.
_________
II.
II.
With respect to the "egregious" nature of the
prosecution misconduct at the state trial, we find no basis, nor
has petitioner proffered any, as to why the Rhode Island courts
are not fully capable of determining whether the misconduct found
in Ouimette "tainted" Byrnes' conviction sufficiently to require
________
habeas relief.3 To the extent that petitioner is asking this
court to examine the merits of his claim without first presenting
it in the state judicial forum, we think the reasoning of
Duckworth with respect to "clear violations" is equally
_________
applicable to "egregious" ones and petitioner must first exhaust
state judicial remedies before seeking redress in federal court.
Petitioner has failed to convince us that recourse to
the state postconviction proceedings available in Rhode Island
dooms him to the same fate as that originally suffered there by
codefendant Ouimette. In fact, events subsequent to our decision
____________________
3At oral argument, counsel for petitioner suggested that,
based on all that had transpired with respect to this case,
"politics may rear its ugly head" and deny petitioner a fair
opportunity to prosecute his claim in the Rhode Island
courts. No evidence has been proposed to support this
proposition and, accordingly, we reject petitioner's
suggestion that the Rhode Island courts will not fairly and
impartially discharge their duty of applying the law to the
facts placed before it.
-6-
6
in Ouimette suggest that the Rhode Island judiciary has seriously
________
addressed the issues raised in the Ouimette federal court
________
decisions. Following our affirmance of the Ouimette district
________
court decision, the Chief Justice of the Rhode Island Supreme
Court ordered the Rhode Island Commission on Judicial Tenure and
Discipline to investigate the underlying allegations of
prosecutorial misconduct. A report has been rendered and the
same has been reviewed and adopted by the Rhode Island Supreme
Court. In re DeRobbio, 604 A.2d 1240 (R.I. 1992).
______________
We are convinced that the Rhode Island judiciary will
insure that this matter receives careful judicial consideration
and that with respect to criminal prosecutions under its
jurisdiction, "justice [will] satisfy the appearance of justice."
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864
______________________________________________
(1988) (quoting In re Murchison, 349 U.S. 133, 136 (1955)
_________________
(quoting Offut v. United States, 348 U.S. 11, 14 (1948))).
______________________
At this time, we have no basis to find that
petitioner's due process claim will not receive a full and fair
hearing before the state tribunals of Rhode Island. We express
no view on the question whether the circumstances of Ouimette and
Byrnes were sufficiently similar as to require the same legal
result.
Petitioner's dismissal of his 28 U.S.C. 2254 habeas
corpus petition against his state conviction is now Affirmed.
Affirmed
________
-7-
7