United States Court of Appeals
For the First Circuit
No. 05-2405
DAVID JOSSELYN,
Petitioner, Appellant,
v.
KATHLEEN DENNEHY, COMMISSIONER, MASSACHUSETTS
DEPARTMENT OF CORRECTION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Rosemary Curran Scapicchio for petitioner.
Annette C. Benedetto, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on
brief, for respondent.
January 19, 2007
HOWARD, Circuit Judge. This appeal raises questions
concerning a "mixed" habeas corpus petition (a petition where not
all of the claims have been exhausted before the state court) filed
by Massachusetts prisoner David Josselyn. In particular, we
consider whether Josselyn's petition does, in fact, include
unexhausted claims and, if so, whether the district court should
have stayed the federal action while Josselyn exhausted these
claims.
Josselyn was convicted in Massachusetts state court of
armed robbery with intent to assault, unlawful possession of a
firearm, and unlawfully discharging a firearm. Josselyn appealed
to the Massachusetts Appeals Court, raising six issues, including
that the prosecutor improperly appealed to the jury's sympathy and
incorrectly stated the burden of proof during the closing argument.
The Appeals Court affirmed Josselyn's conviction, and Josselyn
filed an application for leave to obtain further appellate review
(ALOFAR) with the Massachusetts Supreme Judicial Court (SJC). In
his ALOFAR, Josselyn raised the claims that he had pressed before
the Appeals Court, except for the two closing argument claims. The
SJC declined to afford Josselyn further appellate review.
Josselyn then filed a petition for a writ of habeas
corpus in federal district court, raising all the claims included
in the ALOFAR and attempting to revive the closing argument claims.
The Commonwealth moved to dismiss the petition on the ground that
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the closing argument claims were unexhausted. The district court
agreed and dismissed the petition after Josselyn refused the
district court's offer to proceed on only the exhausted claims.
Josselyn then asked the district court to issue a certificate of
appealability to allow consideration of whether his closing
argument claims were unexhausted the petition should have been
stayed instead of dismissed. The court granted the certificate
insofar as it concerned the stay question, and we expanded it to
include whether Josselyn had, in fact, exhausted the closing
argument claims before the state court. We begin our analysis by
considering this latter question.
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thus giving the state the first "opportunity to pass
upon and correct alleged violations of its prisoners' federal
rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam)(internal citations omitted). A claim for habeas corpus
relief has been exhausted where the claim has been "fairly
presented" to the state courts. Baldwin v. Reese, 541 U.S. 27, 29
(2004). A claim is fairly presented so long as it is made in such
a way that "a reasonable jurist" would have recognized "the
existence of the federal question." Casella v. Clemons, 207 F.3d
18, 20 (1st Cir. 2000). Where, as here, a state's highest court
offers discretionary review, a petitioner must present that court
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with the opportunity to review the federal claim to have exhausted
available state remedies. Baldwin, 541 U.S. at 29. We review a
ruling that a habeas claim has not been exhausted de novo.
Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997).
The SJC has the power of discretionary review over
decisions of the Appeals Court. An unsuccessful party before the
Appeals Court seeks discretionary review from the SJC by filing an
ALOFAR. Mass. R. App. Proc. 27.1 (b). The ALOFAR must include "a
statement of the points with respect to which further appellate
review of the decision of the appeals court is sought." Id. 27
(b)(4). Josselyn concedes that his ALOFAR did not include the
closing argument claims. He argues, however, that he exhausted
these claims by presenting them to the Appeals Court. To make this
argument, Josselyn relies on the SJC's power to review all the
issues that were before the Appeals Court, including issues not
included in the ALOFAR. See Bradford v. Baystate Med. Ctr., 613
N.E.2d 82, 85 (Mass. 1993). He also relies on the fact that the
SJC justices had before them the Appeals Court's opinion when
ruling on his ALOFAR, and thus were aware that he had presented the
closing argument claims to the Appeals Court.1
1
When deciding whether to grant an ALOFAR, the SJC justices do
not have before them the Appeals Court briefs or record. These
materials are only transmitted to the SJC once the ALOFAR is
granted.
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We rejected this precise argument in Mele v. Fitchburg
Dist. Court., 850 F.2d 817, 823 (1st Cir. 1988) and are bound by
that decision, see N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66,
76 (1st Cir. 2006). We observed, in part, that finding exhaustion
where a claim appeared in the Appeals Court's decision but was
omitted from the ALOFAR would unfairly require "the SJC to go over
each and every opinion of the [Appeals Court] with a fine tooth
comb, in an unremitting search for errors that the parties have
neglected to pursue . . . ." Mele, 850 F.2d at 823. The Supreme
Court recently applied similar reasoning in a case that presented
an almost identical issue. See Baldwin, 541 U.S. at 31 (noting
that any requirement that the highest state court reviews the lower
appellate opinion to consider issues not in the petition for
discretionary review "would impose a serious burden upon judges of
state appellate courts"). Accordingly, the continued vitality of
Mele is not in question.
Josselyn points to cases decided after Mele where we
examined materials outside of the ALOFAR to determine whether claims
had been fairly presented to the SJC. See Goodrich v. Hall, 448
F.3d 45, 48 (1st Cir. 2006); Barresi v. Maloney, 296 F.3d 48, 52
n.1 (1st Cir. 2002); Scarpa v. Dubois, 38 F.3d 1, 7 n.3 (1st Cir.
1994). These cases are, however, easily distinguishable. In
Goodrich, Barresi, and Scarpa, the petitioner's ALOFAR was ambiguous
as to whether it included a particular federal claim. In those
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circumstances, we permitted the examination of "background
materials" to clarify the nature of claim that was made in the
ALOFAR. See Goodrich, 448 F.3d at 48; Barresi, 296 F.3d at 52;
Scarpa, 38 F.3d at 7 n.3.2 Here, by contrast, Josselyn's ALOFAR
omitted the closing argument claims entirely. Thus, there is no
need for clarification.
We turn next to the propriety of the district court's
dismissal of Josselyn's mixed petition. Prior to Congress'
revamping of habeas corpus as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEPDA), the Supreme Court held
that a federal district court could not adjudicate a mixed habeas
corpus petition. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
Congress maintained this "total exhaustion" requirement for post-
AEPDA petitions. 28 U.S.C. § 2254(b)(1)(A). In AEDPA, Congress
also adopted a one-year statute of limitations for the filing of
fully-exhausted claims in a federal habeas petition, id. § 2244(d),
and did not provide for the tolling of the limitations period while
a mixed habeas petition was pending in federal court, Duncan v.
Walker, 533 U.S. 167, 181-82 (2001). As the Supreme Court recently
2
The Commonwealth argues that the Supreme Court's decision in
Baldwin abrogates our rule that background materials may be
considered to interpret an otherwise ambiguous ALOFAR. See 541
U.S. at 32 (holding that "ordinarily a state prisoner does not
'fairly present' a claim to a state court if that court must read
beyond the petition or brief"). Because of our resolution of
Josselyn's argument, we do not reach this question.
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explained, the combined effect of these provisions has caused
difficulties for filers of mixed petitions:
As a result of the interplay between AEDPA's 1-
year statute of limitations and Lundy's
dismissal requirement, petitioners who come to
federal court with 'mixed' petitions run the
risk of forever losing their opportunity
for any federal review of their unexhausted
claims. If a petitioner files a timely but
mixed petition in federal district court, and
the district court dismisses it under Lundy
after the limitations period has expired, this
will likely mean the termination of any federal
review.
Rhines v. Weber, 544 U.S. 269, 275 (2005). This is often true, as
well, where the district court dismisses the mixed petition close
to the end of the one-year period because "the petitioner's chances
of exhausting his claims in state court and refiling his petition
in federal court before the limitations periods runs are slim." Id.
To remedy this problem, the Supreme Court approved a
"stay and abeyance" procedure in Rhines. Id. at 275. Under this
procedure, rather than dismissing a mixed petition under Lundy, a
district court can stay the petition and hold it in abeyance while
the petitioner exhausts the unexhausted claims. Id. Once all of
the claims have been exhausted, the district court can lift the stay
and adjudicate the petition. Id. The Court recognized, however,
that applying the "stay and abeyance" procedure too frequently could
undermine Congress' design in AEDPA to encourage finality in
criminal proceedings and to streamline the federal habeas process.
Id. at 277. Thus, to obtain a stay of a mixed petition, the
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petitioner must show that there was "good cause" for failing to
exhaust the state remedies, the claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory tactics. Id. at 278.
The district court dismissed Josselyn's petition several
weeks before Rhines issued. Josselyn argues that, under the
criteria set forth in Rhines, he was entitled to a stay. We
disagree because he has not demonstrated good cause for failing to
exhaust his closing argument claims. He argues good cause because
his counsel allegedly believed that he had exhausted the closing
argument claims by presenting them to the Appeals Court. But, such
a belief, if sincerely held, would have been unreasonable in light
of Mele. Ignorance of the law does not constitute good cause.3 Cf.
In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (stating that
ignorance of the law does not generally constitute good cause);
Townsel v. Contra Costa County, Cal., 820 F.2d 319, 320 (9th Cir.
1987) (similar).
Affirmed.
3
Justice Stevens, concurring in Rhines, suggested that the
"good cause" requirement not be strictly imposed against pro se
petitioners. See Rhines, 544 U.S. at 279 (Stevens, J., concurring)
(noting concern that "good cause" requirement not become "a trap
[for] the unwary pro se prisoner"). The application of the good
cause requirement to pro se prisoner's is not implicated here,
however, as Josselyn was represented by counsel throughout the
state proceedings.
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