UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 97-1536
LEONARD H. ADELSON,
Petitioner, Appellant,
v.
JAMES V. DIPAOLA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Kimberly Homan, with whom Robert L. Sheketoff, Sheketoff &
Homan, Francis J. DiMento, and DiMento & Sullivan were on brief,
for appellant.
William J. Meade, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Scott Harshbarger, Attorney General,
was on brief, for appellee.
December 12, 1997
SELYA, Circuit Judge. Petitioner-appellant Leonard H.
SELYA, Circuit Judge.
Adelson hatched a plan to film bouts between Russian and American
pugilists and market the resultant videotapes to Russian
television stations. The undercapitalized venture was doomed
from the opening bell. In the aftermath of its collapse, the
Commonwealth of Massachusetts successfully prosecuted the
petitioner on charges of larceny by check. After a fruitless
pursuit of appellate remedies in the state courts, the petitioner
sought habeas corpus relief in a federal forum, naming a state
correctional official as the respondent. In an ore tenus
decision, the district court dismissed the petition on the ground
that it contained an unexhausted claim. The petitioner appeals.
We affirm.
I.
I.
The Tale of the Tape
The Tale of the Tape
Early in 1993, the petitioner, a resident of
Massachusetts, teamed up with Steven Eisner and Lawrence Meyers,
both residents of Arizona, to promote and videotape prizefights
between American and Russian boxers. The petitioner's
responsibilities included underwriting the project, supplying
Russian boxers, and marketing videotapes of the bouts, for which
he would garner the lion's share of the anticipated profits.
Eisner was to receive a monthly salary, reimbursed expenses, and
a lesser share of the profits for recruiting the American
pugilists and handling the logistics of the matches. Meyers
agreed to film the fisticuffs in exchange for an up-front payment
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of $5,000 and a further payment in approximately the same amount
plus expenses (e.g., editing costs), due upon production of
commercially acceptable videotapes of a particular card of bouts.
In April 1993, the petitioner transmitted a check for
$5,000 to Meyers as an initial payment and sent two checks for
$2,500 and $7,500, respectively, to Eisner. All three checks
were drawn on the petitioner's account at Cambridge Trust
Company, a Massachusetts bank, and were intended to effect
payment for services rendered or to be rendered in connection
with boxing matches scheduled to take place in Laughlin, Nevada
on April 28, 1993. The payees negotiated the checks. In due
course, however, Cambridge Trust returned them, unhonored,
explaining that the account lacked sufficient funds. The
petitioner attributed the incident to a bank error and persuaded
Eisner and Meyers to go forward with the promotion.
The three men met in Laughlin on April 28. At that
time, the petitioner gave Meyers $3,000 in cash and promised to
pay the balance of his fee by wire transfer the next day.
Although that transfer never materialized, the petitioner did
send a total of $13,000 to Eisner in mid-May. Eisner diverted
$5,000 from this sum to Meyers to cover editing expenses.
Despite the fact that he had not been paid in full, Meyers
performed the editing work and delivered a single videotape to
the petitioner in Massachusetts with the hope that the petitioner
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could sell it and thereby make good on the bounced checks.1
Meyers's hopes soon were dashed: the petitioner's efforts to
market the tape in Russia proved unavailing and he thereafter
turned a blind eye to the insistent demand letters forwarded by
his erstwhile partners.
To make a tedious tale tolerably terse, Eisner and
Meyers eventually called the three dishonored checks to the
attention of the Massachusetts authorities. In turn, those
financial instruments formed the predicate for three counts of
larceny by check. See Mass. Gen. Laws ch. 266, 37 (1990).
Trial, conviction, and the imposition of a two-year prison
sentence followed apace.2 The Massachusetts Appeals Court
affirmed the conviction, see Commonwealth v. Adelson, 666 N.E.2d
167 (Mass. App. Ct. 1996), and the Massachusetts Supreme Judicial
Court (SJC) denied further appellate review. 670 N.E.2d 966
(Mass. 1996).
Undeterred by his lack of success in the early rounds,
the petitioner applied for habeas corpus relief in the United
States District Court for the District of Massachusetts. See 28
U.S.C. 2254 (1994 & Supp. II 1996). He posited that the state
trial judge's decision to withhold from the jury the question
whether Massachusetts courts had subject matter jurisdiction
1While the exact amount of money that Adelson owed Meyers is
disputed by Meyers's reckoning, the petitioner owed him $5,955
for services rendered after all sums actually received had been
credited it is pellucid that Adelson never paid Meyers in full
for the videotaping services.
2Execution of the sentence has been stayed.
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relieved the prosecution of its burden to prove each element of
the criminal charges and thus violated his right to due process
of law under the Fourteenth Amendment. The petitioner bottomed
this claim of constitutional error on an assertion that
Massachusetts case law deems jurisdiction a substantive element
of every criminal offense and that the prosecution therefore must
prove its existence beyond a reasonable doubt.
The district court dismissed the petition without
reaching the merits, concluding that Adelson inadequately
presented his putative federal claim in the Massachusetts courts.
Judge Woodlock did, however, grant a certificate of
appealability. See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b).
This appeal ensued.
II.
II.
Exhaustion
Exhaustion
In recognition of the state courts' important role in
protecting constitutional rights, the exhaustion principle holds,
in general, that a federal court will not entertain an
application for habeas relief unless the petitioner first has
fully exhausted his state remedies in respect to each and every
claim contained within the application. See Rose v. Lundy, 455
U.S. 509, 518-19 (1982). Although exhaustion is not a
jurisdictional bar to federal habeas review of a state court
conviction, it is "the disputatious sentry [that] patrols the
pathways of comity" between the federal and state sovereigns.
Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). With few
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exceptions none of which are applicable here federal courts
have enforced the exhaustion requirement consistently and
rigorously. See, e.g., Rose, 455 U.S. at 518; Martens v.
Shannon, 836 F.2d 715, 718 (1st Cir. 1988). Thus, 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 this federal claim. See Picard v. Connor, 404 U.S. 270,
276-77 (1971); Nadworny, 872 F.2d at 1098. To carry this burden,
the petitioner must demonstrate that he tendered each claim "in
such a way as to make it probable that a reasonable jurist would
have been alerted to the existence of the federal question."
Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).
Although fair presentment of a claim is obligatory,
there are myriad ways in which that phenomenon can be
accomplished. See Nadworny, 872 F.2d at 1097-98 (noting at least
five ways in which a habeas petitioner satisfactorily can present
a federal claim to the state courts). But the flexibility
inherent in this multi-channeled approach does not transform the
exhaustion requirement into an empty formality. A federal
court's calculation of the probability that a reasonable jurist
would have discerned the federal question from a perusal of the
petitioner's relevant state-court filings is not a matter of
guesswork. Rather, that calculation is informed "by trappings
specific constitutional language, constitutional citation,
appropriate federal precedent, substantive constitutional
analogy, argument with no masking state-law character, and the
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like." Id. at 1101. The fewer the trappings that adorn a
petitioner's state-court filings, the less likely that we will
find his federal claim to have been exhausted.
Although these general principles provide a modicum of
guidance, our de novo appellate review of a district court's
dismissal of a habeas petition for want of exhaustion is
necessarily case-specific. See id. at 1095. We turn, then, to
the particulars of the case at hand.
In the district court, the petitioner, citing cases
such as Schad v. Arizona, 501 U.S. 624, 638 (1991), and In re
Winship, 397 U.S. 358, 364 (1970), articulated his constitutional
claim in the following terms: (1) Massachusetts case law defines
jurisdiction as a substantive element of all criminal offenses;
(2) due process requires the prosecution to prove all the
substantive elements of an offense beyond a reasonable doubt; (3)
and therefore, in a Massachusetts criminal case, the prosecution
must prove jurisdiction beyond a reasonable doubt.3 Given this
syllogism, the petitioner posited that the state trial judge's
preemption of the jurisdictional issue and his concomitant
refusal to instruct the jury on it relieved the prosecution of
its due-process-imposed burden to prove all the substantive
3We take no view of the petitioner's characterization of
Massachusetts law. We note, however, that if Massachusetts has
not made jurisdiction a substantive element of the larceny by
check offense, then the petitioner's claim would appear to turn
on alleged errors of state, not federal, law. If this were so,
then federal habeas review would not be available to him. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers,
497 U.S. 764, 780-81 (1990); Puleio v. Vose, 830 F.2d 1197, 1204
(1st Cir. 1987).
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elements of the charged crimes. This is an intriguing argument,
and one that clearly states a federal constitutional claim.
Whether the claim would have merit is, however, a different issue
and one which, absent exhaustion, we need not decide.
The fly in the ointment is that Adelson never pitched
this argument to the Massachusetts courts. This is not to say
that the argument is completely alien to the state court record.
In his brief to the Massachusetts Appeals Court and in his
unsuccessful application to the SJC for further appellate review,
the petitioner set forth the factual underpinnings of his federal
claim. But setting forth the factual underpinnings of a claim is
insufficient, in and of itself, to constitute fair presentment of
that claim. A habeas petitioner must also elucidate the legal
foundation of his federal claim. See Nadworny, 872 F.2d at 1096;
Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987). It is on these
shoals that the petitioner's quest founders.
Exhaustion obligations mandate that a habeas petitioner
present, or do his best to present, his federal claim to the
state's highest tribunal. See United States ex rel. Kennedy v.
Tyler, 269 U.S. 13, 17 (1925); Mele v. Fitchburg Dist. Court, 850
F.2d 817, 820 (1st Cir. 1988). Accordingly, the decisive
pleading is the application for further appellate review, and we
must determine whether the petitioner fairly presented the
federal claim to the SJC within "the four corners" of that
application. Mele, 850 F.2d at 823. In this case, the
petitioner argued to the SJC, as he did to the Massachusetts
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Appeals Court, that the Commonwealth's evidence could not support
criminal jurisdiction and that the trial judge at least should
have submitted the jurisdictional issue to the jury but he
neither premised these arguments on federal constitutional
grounds nor provided any signposts that pointed toward a due
process pathway to reversal of his conviction. The petitioner
cited no federal cases, made no mention of the Fourteenth
Amendment, and eschewed all references to the concept of due
process. He instead relied only upon Massachusetts case law and
debated the assignment of error exclusively in state-law terms.
Under these circumstances, we cannot say that the
petitioner exhausted his due process claim. It is true, of
course, that deployment of federal authority sometimes is not a
prerequisite to adequate presentation of a federal claim to the
state courts. See Scarpa, 38 F.3d at 7. Nevertheless, such
occasions will be few and far between, and they invariably will
involve some suitable surrogate for explicit reference to federal
authorities, say, an emphasis on federal due process rights in
the petitioner's cited state cases or an analysis of state law
that adopts or parallels federal constitutional analysis. See
Lanigan v. Maloney, 853 F.2d 40, 44 (1st Cir. 1988); Dougan v.
Ponte, 727 F.2d 199, 201 (1st Cir. 1984); cf. Anderson v.
Harless, 459 U.S. 4, 7 n.3 (1982) (per curiam) ("We doubt that a
defendant's citation to a state-court decision predicated solely
on state law ordinarily will be sufficient to fairly apprise a
reviewing court of a potential federal claim merely because the
9
defendant in the cited case advanced a federal claim.") (emphasis
in original). No such surrogate dwells in the present record.
Indeed, in his application for further appellate review the
petitioner did not even attempt to analogize his state-law claims
of error to a due process violation. This is simply not enough
to alert even the most perspicacious of jurists to the embedded
constitutional claim. See Nadworny, 872 F.2d at 1101.
In a desperate effort to overcome the fact that any
supposed presentation of his federal claim to the Massachusetts
courts is masked, or, more accurately, completely camouflaged, by
a dense state-law overlay, the petitioner maintains that his use
of the phrase "proof beyond a reasonable doubt" conjured up
constitutional visions perceptible to any reasonable jurist, and,
thus, saves the day. We do not agree. "Rhetoric arguing that a
claim previously asserted without federal citation or other
conspicuous federal emblemata nonetheless fell within some
hypothetical `mainstream' of constitutional litigation has an
oxymoronic quality." Id. at 1098. Consequently, we regularly
have held, and today reaffirm, that the mere incantation of
constitutional buzzwords, unaccompanied by any federal
constitutional analysis, does not suffice to carry the burden of
demonstrating fair presentment of a federal claim. See Gagne,
835 F.2d at 8; Dougan, 727 F.2d at 201. In all events, to the
extent that the "proof beyond a reasonable doubt" mantra might
raise a constitutional eyebrow, the petitioner invoked it only
once, in passing, in his brief to the Massachusetts Appeals
10
Court, and not at all in his application to the SJC. As we have
warned before, "scatter[ing] some makeshift needles in the
haystack of the state court record" is not enough to ground a
claim of exhaustion. Martens, 836 F.2d at 717.
The lack of fair presentment ends the matter. While
there are occasional exceptions to the exhaustion requirement
(say, where exhaustion plainly would be futile or where the state
has waived the requirement), the petitioner does not, and cannot,
argue that any apply in this instance. On the other hand, while
the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered
sections of 28 U.S.C.), changes preexisting habeas law by
conferring upon federal courts express authorization to "den[y a
habeas petition] on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of
the State," 28 U.S.C. 2254(b)(2), we do not think that this
case is an appropriate candidate for the use of such power. The
petitioner's federal claim flows from an apparently novel
interpretation of Massachusetts law. Assuming that he is not now
procedurally barred from presenting his claim to the
Massachusetts courts a matter on which we express no opinion
we believe that those tribunals are better situated to test the
petitioner's state-law hypothesis. See Gagne, 835 F.2d at 10.
III.
III.
Conclusion
Conclusion
We need go no further. Habeas counsel often confront
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an inhospitable legal landscape, and the problem is complicated
by the intricacies of the exhaustion requirement. We must,
however, apply that requirement impartially. Here, only the most
intrepid judicial spelunker could have picked a path through the
petitioner's state-law-strewn grotto and excavated a buried claim
of constitutional error. Because the petitioner did not present
his federal claim to the Massachusetts courts "face-up and
squarely," Martens, 836 F.2d at 717, the district court properly
dismissed his habeas petition, without prejudice, for want of
exhaustion.
Affirmed.
Affirmed.
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