Barresi v. Maloney

United States Court of Appeals
For the First Circuit

No. 00-2364

WILLIAM A. BARRESI, II
Petitioner, Appellant,

v.

MICHAEL J. MALONEY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and McAuliffe,* District Judge.

Kenneth G. Littman for appellant.
Linda A Wagner, Assistant Attorney General, with whom
Thomas F. Reilly, Massachusetts Attorney General, was on brief for
the appellee.

July 23, 2002

*
Of the District of New Hampshire, sitting by designation.
 McAULIFFE, District Judge. William A. Barresi, II, was

convicted in Massachusetts of raping a child under sixteen years of

age, Mass. Gen. Laws ch. 265, § 22A, and committing an indecent

assault and battery on a child under fourteen years of age (the

same child), id. § 13B. The Massachusetts Appeals Court affirmed

his convictions, Commonwealth v. Barresi, 46 Mass. App. Ct. 907,

705 N.E.2d 639 (1999), and the Massachusetts Supreme Judicial Court

("SJC") denied, without opinion, his Application for Leave to

Obtain Further Appellate Review (commonly referred to as an

"ALOFAR"). Commonwealth v. Barresi, 429 Mass. 1106, 710 N.E.2d 604
(1999). Pursuant to 28 U.S.C. § 2254, Barresi then petitioned the

United States District Court for the District of Massachusetts for
habeas corpus relief. The district court dismissed the petition,
holding that Barresi had not fairly presented his federal

constitutional claims to the SJC and, therefore, had not exhausted
available state court remedies. Although the issue is open to
reasonable debate, because we conclude that Barresi did adequately

present his federal claims, we reverse and remand the habeas
petition for consideration on its merits.
I.

Prior to his criminal trial, Barresi filed a motion under
the Commonwealth's Rape Shield Law, Mass. Gen. Laws ch. 233, §21B,
seeking leave to introduce evidence that his alleged sexual assault

victim had tested positive for chlamydia, a sexually transmitted
disease. Based upon those positive test results, as well as his

own test results, which revealed that he had never been infected

-2-
with any chlamydia organism, Barresi hoped to persuade the jury

that he could not have repeatedly raped the complainant and,

consequently, that her accusations against him were false.
Barresi also wanted to show that the complainant made up

the rape and assault charges to deflect her mother's scorn.

According to Barresi, when the young complainant realized her
mother was about to discover that she had been sexually active (for

perhaps as long as a year) with at least one, and possibly two or

more, teenage boys, she fabricated the charges against Barresi to

create a plausible diversionary explanation for her sexually

transmitted disease. To support that theory of defense, Barresi

sought to introduce evidence that the complainant reported the

alleged sexual assaults to the police after she had had an argument
with her mother, and then ran off to meet with one of the boys with

whom she allegedly had an ongoing sexual relationship. Barresi

implicitly suggested that at that meeting the two concocted the
false rape charges against him, after which the complainant was

taken to the police station where she reported the fabricated story

to law enforcement officers.

A pretrial hearing was held on Barresi's motion for leave

to introduce evidence related to the complainant's sexual history.

At that hearing, Barresi presented a physician he intended to call

as a medical expert at trial. Although the doctor was able to give

a general explanation of chlamydia and its mode of transmission, he

conceded that he had never actually treated patients with the

disease, and that his understanding of it was based largely upon

-3-
information he had gleaned from medical text books. In ruling that

Barresi could not introduce the medical expert's testimony at

trial, the presiding judge concluded that the doctor lacked
sufficient knowledge to give an expert opinion about the incubation

period of chlamydia, or the likelihood that a person who had

intercourse with an infected partner might contract the disease.
The trial judge also concluded that the Massachusetts Rape Shield

Law precluded introduction of evidence concerning the complainant's

prior sexual conduct with the teenage boy(s), notwithstanding

Barresi's asserted intent to introduce that evidence solely to

impeach her testimony, and not merely to establish that she was

sexually promiscuous. Finally, the trial judge precluded Barresi

from introducing testimony from two boys concerning a false
accusation of rape the complainant had allegedly leveled against

one of them.

Following a three day trial, the jury convicted Barresi
on both counts. His appeal to the Massachusetts Appeals Court

unambiguously asserted, among other things, that the trial court's

refusal to allow him to introduce evidence of the complainant's

prior sexual relationship with the teenage boy(s), as well as its

refusal to allow testimony from his medical expert, violated his

right to confront adverse witnesses, as guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution. While it

did not directly address Barresi's federal constitutional claims,

the Commonwealth's intermediate appellate court ruled that the

trial judge neither abused his discretion nor committed an error of

-4-
law in excluding the challenged evidence. Barresi, 705 N.E.2d at

641. Accordingly, Barresi's convictions were affirmed.

Barresi filed a timely ALOFAR with the SJC, the essential
thrust of which was that the trial court erred in its

interpretation and application of the Massachusetts Rape Shield

Law. Barresi did, however, at least allude to the federal
constitutional issues he had pressed more forcefully before the

intermediate appellate court. The SJC denied Barresi's ALOFAR

without opinion.

Barresi then filed a petition for federal habeas corpus

relief, pursuant to 28 U.S.C. § 2254, reiterating his claims that

the trial court's evidentiary rulings violated his rights under the

Sixth and Fourteenth Amendments. The Commonwealth moved to dismiss
the petition, arguing that with regard to his federal

constitutional claims, Barresi had failed to exhaust the remedies

available to him in state court. The district court agreed,
holding that because Barresi's ALOFAR did not fairly present his

constitutional claims to the SJC, those claims were not exhausted.

Therefore, Barresi's habeas petition was dismissed. We

subsequently granted Barresi's application for a certificate of

appealability, see generally Slack v. McDaniel, 529 U.S. 473

(2000), and this appeal followed.

II.

The merits of Barresi's habeas petition are not at issue,

so we make no comment in that regard. The sole question presented

here is a procedural one: whether the federal constitutional claims

-5-
Barresi advances in his habeas petition were fairly and

recognizably presented in his appeal to the SJC. That is, we must

decide whether Barresi exhausted available state remedies as to
those issues. Our review is de novo. See Adelson v. DiPaola, 131

F.3d 259, 262 (1st Cir. 1997).

Barring certain exceptional circumstances not present
here, a habeas petitioner in state custody may not advance his or

her constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the state's

highest court. This exhaustion requirement, codified at 28 U.S.C.

§§ 2254(b) and (c), embodies principles of federal-state comity and

is designed to provide state courts with an initial "opportunity to

pass upon and correct alleged violations of [their] prisoners'
federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971)

(citation and internal quotation marks omitted). The petitioner

bears the heavy burden of demonstrating satisfaction of the
exhaustion requirement. See Adelson, 131 F.3d at 262; Nadworny v.

Fair, 872 F.2d 1093, 1098 (1st Cir. 1989). To carry that burden,

the petitioner must show that "he tendered his federal claim [to

the state's highest court] in such a way as to make it probable

that a reasonable jurist would have been alerted to the existence

of the federal question." Casella v. Clemons, 207 F.3d 18, 20 (1st

Cir. 2000) (citations and internal quotation marks omitted).

The Supreme Court has made it clear that a federal claim

is not exhausted merely because the facts that underlie it have

been previously placed before the state's highest court. See

-6-
Picard, 404 U.S. at 277. Importantly, however, a petitioner need

not express his federal claims in precisely the same terms in both

the state and federal courts. See, e.g., id. at 277-78 (holding
that the claims advanced by a habeas petitioner before the state's

highest court must be the "substantial equivalent" of those raised

in his or her federal habeas petition).
We have noted that there are myriad ways in which a

petitioner might satisfy his or her obligation to fairly present a

federal constitutional issue to a state's highest court. They

include:

(1) citing a specific provision of the
Constitution; (2) presenting the substance of
a federal constitutional claim in such manner
that it likely alerted the state court to the
claim's federal nature; (3) reliance on
federal constitutional precedents; and (4)
claiming a particular right specifically
guaranteed by the Constitution.
Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987) (citations omitted).

But the list developed in Gagne is merely illustrative; it does not

purport to be exhaustive. So, for example, in Nadworny, we

recognized that there "is yet another species of exhaustion which

merits attention. An individual's claim, arising under and

asserted in terms of state law, may, as a practical matter, be

indistinguishable from one arising under federal law." 872 F.2d at

1099.

It necessarily follows that each case in which a

petitioner is alleged to have inadequately presented his or her

federal constitutional claims to the state's highest court is both

sui generis and fact-driven, turning on its own unique

-7-
circumstances. See, e.g., Adelson, 131 F.3d at 262 (observing that

"our de novo appellate review of a district court's dismissal of a

habeas petition for want of exhaustion is necessarily case-
specific"). In determining whether a petitioner presented his or

her federal claims to the state's highest court "face-up and

squarely," Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988),

we consider issues of probability - whether it is more likely than

not that a reasonable jurist would recognize the constitutional

dimensions of the petitioner's claims, given the manner in which

those claims were presented. See Nadworny, 872 F.2d at 1101.

To resolve the question before us, then, we must direct

our attention primarily to Barresi's ALOFAR. See Adelson 131 F.3d

at 263 ("[T]he decisive pleading [under Massachusetts practice] 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.") (quoting Mele

v. Fitchburg Dist. Court, 850 F.2d 817, 823 (1st Cir. 1988)).

Nevertheless, while our inquiry must focus on the "four corners" of

the ALOFAR, we have never held that appellate review is confined to

an examination of that pleading in isolation. Rather, we have

acknowledged that, under certain circumstances, the pleadings and

filings submitted by a habeas petitioner to lower state courts

(e.g., a motion for new trial or a brief submitted to an

intermediate appellate court) provide "a backdrop against which his

later filings [must] be viewed." Scarpa v. DuBois, 38 F.3d 1, 7

(1st Cir. 1994). In fact, in Scarpa, we explicitly rejected the

-8-
proposition that prior circuit precedent restricts the exhaustion

inquiry exclusively to an examination of the petitioner's ALOFAR.

Id. at 8 n.3.1
III.

Turning to the facts of this case, we are persuaded that,

while petitioner certainly could have raised his federal
constitutional issues in a more plain and direct manner, his

ALOFAR, particularly when read against the "backdrop" of his

earlier filings in the intermediate appellate court, was minimally

sufficient to apprise the SJC of the continuing federal

constitutional dimension of his appeal.

1
At first glance, it might appear that Mele and Scarpa are
at odds. In Mele, for example, we observed that, "[u]nder the
SJC's practice as we understand it, the court receives the papers
and briefs from the lower court only if - and after - it grants an
ALOFAR." 850 F.2d at 822. That observation led us to conclude
that, at least when the SJC denies an ALOFAR, federal exhaustion
review should be limited to the "four corners" of that pleading.
Id. at 823. More recently, however, we determined that,
notwithstanding the fact that the SJC denied a petitioner's ALOFAR,
the federal exhaustion inquiry must not be limited exclusively to
an examination of the petitioner's ALOFAR. Scarpa, 38 F.3d at 7.
Despite the apparent conflict, Mele and Scarpa are not
inconsistent. In cases like Mele, where it is clear that a
petitioner has, on appeal to the SJC, abandoned federal
constitutional claims advanced before the lower courts, it is
entirely appropriate to limit the exhaustion inquiry to the "four
corners" of the ALOFAR. If, however, it cannot be said that the
petitioner abandoned his or her federal claims on appeal to the
SJC, federal exhaustion review includes consideration of the
petitioner's lower court filings as a "backdrop" to his or her
ALOFAR. Compare Mele, 850 F.2d at 822 (concluding that because the
petitioner's ALOFAR did not even mention federal constitutional
issues, the "SJC cannot be presumed to have a duty to look for a
needle in a paper haystack - let alone a haystack located in
someone else's barn"), with Scarpa, 38 F.3d at 7 n.3 (rejecting the
State's "crabbed reading" of Mele and its assertion that the
court's review must necessarily be limited to the "four corners" of
the ALOFAR, since the record revealed that the petitioner had
"consistently asserted" his federal constitutional claims).

-9-
 We begin with Barresi's intermediate appellate brief. In

that pleading, Barresi unmistakably argued that the trial court's

evidentiary rulings deprived him of rights guaranteed by the Sixth
and Fourteenth Amendments. For example, Barresi asserted that "[a]

criminal defendant possesses a constitutional right under the Sixth

and Fourteenth Amendments to the United States Constitution as well
as under Article 12 of the Massachusetts Declaration of Rights to

'confront' adverse witnesses, even where it reveals confidential or

privileged information." In support of that proposition, Barresi

cited both federal and state precedent. Later in that same brief,

he asserted that the trial court's rulings "undermined [his] due

process guarantees and destroyed [his] right to present a

meaningful defense to these charges. Such a denial of the right of
'confrontation' as guaranteed by the Sixth and Fourteenth

Amendments and Article 12 of the Massachusetts Declaration of

Rights had a significant impact on the outcome of the trial and
constitutes reversible error." Given those direct invocations of

rights protected by the federal Constitution, Barresi's case

presents a situation not unlike the one we confronted in Scarpa,

where we observed that "by identifying the Sixth Amendment in his

motion for a new trial, petitioner cites a specific provision of

the Constitution, and, at the same time, provided a backdrop

against which his later filings had to be viewed." 38 F.3d at 7

(citation and internal quotation marks omitted).

Unlike his intermediate appellate brief, however,

Barresi's ALOFAR is far less direct in describing his federal

-10-
claims. Facially, it seems primarily devoted to his claim that the

trial court misconstrued and misapplied the Massachusetts Rape

Shield Law. Consequently, much of that pleading is dedicated to
discussing principles of statutory construction under applicable

state law. Nevertheless, the ALOFAR also discloses that Barresi

continued to seek vindication of rights protected by the United
States Constitution. Barresi alleged, for example, that the trial

court's refusal to allow him to introduce expert medical testimony

deprived him of "an opportunity to present an effective challenge

to the complainant's credibility." He also asserted that the trial

court's rulings amounted to "an impermissible infringement on [his]

right to cross-examine [the complainant]," and, as a consequence,

he claimed that his "due process guarantees [were] undermined" by
the disputed trial court rulings.

To support his ALOFAR arguments, Barresi provided

citations to state judicial opinions in which the SJC directly
addressed the same federal constitutional rights he was invoking.

For example, to support his assertion that the trial court's

repeated denial of his requests to inquire into the complainant's

recent sexual conduct with one of her contemporaries amounted to an

"impermissible infringement of the right to cross-examine her,"

Barresi relied upon Commonwealth v. Elliot, 393 Mass. 824, 473

N.E.2d 1121 (1985). In Elliot, the SJC addressed the federal

constitutional issues implicated when a criminal defendant is

precluded from introducing evidence aimed at impeaching or

otherwise cross-examining a victim of sexual assault:

-11-
 We are aware of the ordeal rape complainants
must undergo in assisting the prosecution of
their attackers. The Legislature has shown
sensitivity to a complainant's plight. G.L.
c. 233, § 21B. At the same time we cannot
lose sight of the defendant's right,
guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution
and by art. 12 of the Commonwealth's
Declaration of Rights, to confront adverse
witnesses "by means of cross-examination
directed toward revealing possible biases,
prejudices, or ulterior motives of the witness
as they may relate directly to issues or
personalities in the case at hand."

473 N.E.2d at 1123-24 (quoting Davis v. Alaska, 415 U.S. 308, 316

(1974)). Barresi's ALOFAR also relied upon Commonwealth v.

Stockhammer, 409 Mass. 867, 570 N.E.2d 992 (1991), to support his

claim that the trial court's application of the Massachusetts Rape

Shield Law deprived him of federally protected due process rights.
Stockhammer, in turn, relied upon Elliot in pointing out that "rape

convictions have been reversed on a number of occasions because of

rulings by trial judges prejudicially infringing on the right to
cross-examine the complainant." 570 N.E. 2d at 998.

Without question, it would be better, and far less risky,
for habeas petitioners to highlight the federal nature of claims

presented to a state's highest court by plainly describing them in

federal terms and by citing federal precedent. Nevertheless, there

are circumstances under which a habeas petitioner, like Barresi,

may still fairly present a federal constitutional claim,

notwithstanding his or her exclusive reliance upon state court

precedent:

It is true, of course, that deployment of
federal authority sometimes is not a

-12-
 prerequisite to adequate presentation of a
federal claim to the state courts.
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.

Adelson, 131 F.3d at 263 (citations omitted); see also Scarpa, 38

F.3d at 8 ("Although [citation to federal authorities] is strongly

recommended if only to avoid controversies of this nature, we have

specifically declined to adopt a bright-line rule. The guidelines

we have promulgated in respect to exhaustion are intended to be

instructive, rather than to comprise the sole corridors through
which the actual embodiment of fair presentation may pass.")

(citation and internal quotation marks omitted); Nadworny, 872

F.2d at 1099 ("[A] wooden rule which unfailingly denies exhaustion
if no federal cases were cited stateside seems to us too

restrictive.").

Although Barresi's ALOFAR relies almost entirely upon

state precedent to support his federal constitutional claims, the
decisions he cites do directly address the federal constitutional

issues central to his effort to obtain a new trial. And, those

decisions recognize and discuss the federal constitutional issues

plainly implicated when a state's rape shield law arguably

conflicts with a criminal defendant's constitutionally protected

-13-
right to confront and cross-examine adverse witnesses — the very

point Barresi has argued all along.1

In summary, then, several factors, considered in light of
the entire record, persuade us that Barresi met, albeit minimally,

the exhaustion requirement of 28 U.S.C. § 2254. First, his ALOFAR

alleges that the trial court's adverse evidentiary rulings deprived
him of the right to present an effective challenge to the

complainant's credibility and infringed his right to cross-examine

her. When a state rape shield statute operates to "prevent a

criminal defendant from presenting relevant evidence" and

diminishes his or her "ability to confront adverse witnesses and

present a defense," the statute "unquestionably implicates the

Sixth Amendment." Michigan v. Lucas, 500 U.S. 145, 149 (1991).

Second, the ALOFAR specifically asserts that, as a consequence of

the challenged trial court rulings, Barresi's right to due process

1
That a criminal defendant has a constitutionally
protected right to cross-examine adverse witnesses is well
established and widely recognized. In Pointer v. Texas, 380 U.S.
400 (1965), for example, the Supreme Court observed:

There are few subjects, perhaps, upon which
this Court and other courts have been more
nearly unanimous than in their expressions of
belief that the right of confrontation and
cross-examination is an essential and
fundamental requirement for the kind of fair
trial which is this country's constitutional
goal. Indeed, we have expressly declared that
to deprive an accused of the right to cross-
examine the witnesses against him is a denial
of the Fourteenth Amendment's guarantee of due
process of law.

Id. at 405. More recently, in Davis v. Alaska, 415 U.S. at 320,
the Court called the ability to effectively cross-examine adverse
witnesses in a criminal case a "vital constitutional right."

-14-
was infringed. Third, Barresi's ALOFAR invokes state decisional

authority that specifically addresses the federal constitutional

character of issues he sought to litigate. Finally, the ALOFAR's
"backdrop" -- Barresi's intermediate appellate brief -- plainly and

unequivocally raised the same federal constitutional issues

presented in the ALOFAR, and relied upon citations to appropriate
federal authority.

So, notwithstanding the lack of citation to any federal

authority in the ALOFAR itself, when viewed against the "backdrop"

of Barresi's lower court pleadings, the ALOFAR was minimally

sufficient to alert a reasonable jurist to the fact that Barresi

was seeking review of alleged trial court errors that had a decided

federal constitutional dimension. And, unlike the petitioner in
Mele, nothing in the record suggests that Barresi abandoned the

federal constitutional claims he advanced before the intermediate

appellate court. That conclusion is compelled by Barresi's
references in the ALOFAR to his "due process guarantees," his right

to "present an effective challenge to the complainant's
credibility," the trial court's alleged "impermissible infringement

on [his] right to cross-examine her," as well as his reliance on

state court precedent that unambiguously considered and addressed

the federal constitutional dimension of those issues.

Consequently, while it is rare that a petitioner will be found to

have successfully presented a federal constitutional claim to a

state's highest court without referring to federal precedent, see

-15-
Adelson, 131 F.3d at 263, in our judgment, this case manages to

fall across the line separating exhausted from unexhausted claims.

IV.
As noted earlier, resolving cases like this requires an

individualized, case-specific, factual inquiry. Whether a

petitioner's enigmatic state pleadings were sufficient, alone or in
combination, to apprise a reasonable jurist of the federal

constitutional dimensions of his or her claims will often prove

difficult to determine. Reasonable minds can, of course, fairly

debate the ultimate resolution of such fact-specific issues.

Nevertheless, rather than impose "bright line" rules likely to

prove overly restrictive, we think it appropriate to continue to

focus primarily on the claims actually presented in the pleadings
filed in the state's highest court -- the ALOFAR in the

Commonwealth -- but also to consider the "backdrop," comprised of

earlier filed pleadings. Here, although Barresi's ALOFAR is hardly
a model worthy of emulation, it was, in our judgment, minimally

sufficient to apprise a reasonable jurist that Barresi was seeking

to vindicate federally protected constitutional rights of

confrontation and cross-examination.

The district court's order dismissing Barresi's habeas

corpus petition for want of exhaustion is vacated and the petition

reinstated. The matter is remanded to the district court for

further proceedings consistent with this opinion.

-16-