United States Court of Appeals
For the First Circuit
No. 05-2411
JASON CLEMENTS,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY,
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
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Singal,* District Judge.
Rosemary Curran Scapicchio for appellant.
Randall E. Ravitz, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellee.
April 30, 2007
___________________
* Of the District of Maine, sitting by designation.
LIPEZ, Circuit Judge. This case, involving the
exhaustion requirement for habeas petitioners, requires us to
examine some particulars of Massachusetts appellate procedure.
Although we note the possibility that a portion of one of our prior
decisions, Barresi v. Maloney, 296 F.3d 48 (1st Cir. 2002), might
no longer be valid in light of the Supreme Court's decision in
Baldwin v. Reese, 541 U.S. 27 (2004), we need not decide that
question here. We conclude that the habeas petitioner in this case
succeeded in exhausting one claim, which the district court found
unexhausted, because of the then-existing Massachusetts Rules of
Appellate Procedure. We also find, however, that another claim was
properly deemed unexhausted by the district court because the state
rules do not reach as far as the petitioner has suggested. We
therefore affirm in part, reverse in part and remand as to one
claim.
I.
A. State Court Proceedings
Because the specific facts of the crime underlying this
case are not particularly relevant, we recount them only briefly,
with the rebuttable presumption that factual findings by the state
courts are correct. See 28 U.S.C. § 2254(e)(1). A more complete
recitation of the facts can be found in the Massachusetts Supreme
Judicial Court's ("SJC") opinion, Commonwealth v. Clements, 763
N.E.2d 55 (Mass. 2002).
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Clements was convicted of murdering Gregory Tillery in
1995. Tillery was shot on a street corner by a man wearing a
hooded sweatshirt. An eyewitness identified Clements as the killer
while testifying before the grand jury, but recanted that testimony
at trial. The remainder of the evidence presented by the
government was circumstantial. Clements was convicted on charges
of murder in the second degree by joint venture, armed assault with
intent to murder, and unlicensed possession of a gun. A co-
defendant was acquitted.
Clements was given a life sentence, and he immediately
appealed his convictions. His motion for a new trial was denied,
and he appealed that decision as well. Clements made nine separate
legal arguments to the Appeals Court, but his conviction was
affirmed.1 Thereafter, he filed an Application for Leave to Obtain
Further Appellate Review (ALOFAR) with the SJC, raising only three
legal claims.2
1
The nine legal claims presented to the Appeals Court were
described in some detail by the district court. See Clements v.
Maloney, 359 F. Supp. 2d 2, 5 (D. Mass. 2005). They are also
summarized, of course, in the decision issued by the Appeals Court.
See Commonwealth v. Clements, 747 N.E.2d 682, 685 (Mass. App. Ct.
2001).
2
Those claims appeared in the ALOFAR as follows:
(A) Whether the Appeals Court's decision holding that
inconsistent, recanted extrajudicial statements of
identification constituting the sole evidence of guilt is
sufficient to convict pursuant to Commonwealth v. Daye,
393 Mass. 55 (1984)? [the "sufficiency claim"]
(B) Whether the jury's special verdict, finding the
defendant guilty as a joint venturer but not as the
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The SJC granted further appellate review, limited to the
sufficiency claim, and affirmed the conviction. The SJC held that
the recanted testimony was not the sole evidence of guilt, as
Clements claimed, and that there was sufficient evidence to support
the verdict. Clements' argument in support of this claim, both in
his ALOFAR and his supplemental brief to the SJC, relied
exclusively on state law.
B. Federal Court Proceedings
After the SJC rejected his direct appeal, Clements filed
this habeas petition in the district court raising six legal
claims. Three of them were the ones included in the ALOFAR. Two
of the other three had been argued to the state Appeals Court. One
had not previously been raised in any court. In response to the
state's motion to dismiss, Clements argued that he had fully
exhausted his state remedies on all six claims and that, if some
claims were found unexhausted, he should be granted a stay in
federal court so that he could return to state court to exhaust his
remaining claims without fear of exceeding AEDPA's one-year statute
princip[al] of the crime of second degree murder was
supported by sufficient evidence to convict? [the "joint
venture claim"]
(C) Whether the Appeals Court failed to address Clements'
claim that instructions to deliberating jurors to ignore
the opinion of the lone holdout invaded the province of
the jury and violated Clements' right to a fair trial
pursuant to the Sixth and Fourteenth Amendments to the
United States Constitution as well as Article XII of the
Massachusetts Declaration of Rights? [the "jury hold-out
claim"]
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of limitations. The district court carefully reviewed the claims
Clements raised in his habeas petition, looking first at the claims
that had been included in his ALOFAR and then at the claims
excluded therefrom, and concluded that only the jury hold-out claim
was exhausted because it was the only one "fairly presented by the
petitioner for review as a federal claim."3
More specifically, the court found that both the
sufficiency and the joint venture claims were presented to the SJC
solely as state law claims and that they therefore had not been
exhausted. As to both of these claims, the district court stated
that no federal cases were cited and the ALOFAR did not articulate
any federal issues in a recognizable way.
With respect to the claims raised in the habeas petition
that had not appeared in the ALOFAR, the court found that three of
these claims were presented to the Appeals Court as state law
claims, while two were originally argued in reliance on both state
and federal law. One claim appeared in the habeas petition,
despite not being raised before either the Appeals Court or SJC.4
3
The habeas petition combined the jury hold-out claim with
another related issue, which had not been included in the ALOFAR,
as part of a single "claim." Thus, one of the six habeas claims
comprises two separate arguments, one of which was found exhausted
by the district court (the hold-out claim) and one of which was not
(a claim that the trial court should have ordered a mistrial after
the jury twice announced it was deadlocked). The exhaustion of the
jury hold-out claim is not disputed in this appeal.
4
The district court broke some of the habeas claims down into
sub-claims; while the habeas petition listed six grounds for
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Clements argued that all of these claims had some basis in federal
law, and that they ought to be found exhausted because a review of
the brief filed with the Appeals Court revealed those federal
bases. The district court found Clements' arguments meritless
because the Supreme Court's decision in Baldwin v. Reese, 541 U.S.
27, 32 (2004), held that a claim cannot be exhausted if it is not
presented directly to the state's highest court.
Finally, the district court rejected Clements' request
for a stay of his habeas petition because the failure to exhaust
was a result of "deliberate," "tactical" decisions by Clements'
counsel. The court noted our decision in Neverson v. Bissonnette,
261 F.3d 120, 126 n.3 (1st Cir. 2001), which endorsed granting
stays in certain cases, but concluded that this case did not merit
a stay. The district court issued a provisional decision, allowing
Clements to decide whether to proceed in federal court on his
single exhausted claim (by voluntarily dismissing the other,
unexhausted claims) or to dismiss his whole petition and return to
state court.
Clements requested additional time to respond to the
district court's provisional order, citing the Supreme Court's
then-recent decision regarding "mixed" habeas petitions, Rhines v.
relief, the district court analyzed ten distinct claims. See
Clements, 359 F. Supp. 2d at 5-11; see e.g., supra note 3.
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Weber, 544 U.S. 269 (2005).5 The request was granted and Clements
subsequently informed the district court that he would not
voluntarily dismiss any of his habeas claims (in order to proceed
with the exhausted claim), and that he "fe[lt] strongly that the
Supreme Court's decision [in] Rhines v. Weber supports his request
for a [s]tay." The district court then dismissed Clements'
petition pursuant to its earlier provisional order.
II.
The requirement that habeas petitioners exhaust all
available state remedies was originally imposed by the Supreme
Court in Rose v. Lundy, 455 U.S. 509, 518 (1982). Subsequently,
Congress codified the requirement as part of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §
2254(b)(1)(A), and also added a one year statute of limitations for
the filing of habeas petitions, id. § 2244(d). Regardless of its
source, the exhaustion requirement has long served to infuse into
our habeas jurisprudence the interests of comity and federalism.
See, e.g., Rose, 455 U.S. at 518-19 (finding that "'it would be
unseemly in our dual system of government for a federal district
court to upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation,'" and that
5
"Mixed" habeas petitions are those containing both exhausted
and unexhausted claims. Rhines held that, where certain criteria
are satisfied, such petitions should be stayed in federal court so
that the petitioner can return to state court to complete the
exhaustion process. 544 U.S. at 278.
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"[a] rigorously enforced total exhaustion rule will encourage state
prisoners to seek full relief first from the state courts, thus
giving those courts the first opportunity to review all claims of
constitutional error") (quoting Darr v. Burford, 339 U.S. 200, 204
(1950)).
In order to exhaust a claim, the petitioner must "present
the federal claim fairly and recognizably" to the state courts,
meaning that he "must show that he tendered his federal 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.'"
Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000) (quoting
Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997)). This means
that "the legal theory [articulated] in the state and federal
courts must be the same." Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.
1987). This standard must be met, as a general rule, by "fairly
present[ing]" a federal claim "within the four corners of the
ALOFAR." Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir.
1988). We have previously held that a habeas petitioner may
accomplish this by doing any of the following: (1) citing a
provision of the federal constitution; (2) presenting a federal
constitutional claim in a manner that fairly alerts the state court
to the federal nature of the claim; (3) citing federal
constitutional precedents; or (4) claiming violation of a right
specifically protected in the federal constitution. Gagne, 835
-8-
F.2d at 7. We have also noted that, in some situations, citations
to state court decisions which rely on federal law or articulation
of a state claim that is, "as a practical matter, []
indistinguishable from one arising under federal law," may suffice
to satisfy the exhaustion requirement. Nadworny v. Fair, 872 F.2d
1093, 1099-1100 (1st Cir. 1989). It is, however, clearly
inadequate to simply recite the facts underlying a state claim,
where those facts might support either a federal or state claim.
Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988).
Clements contends that all six of his habeas claims have
satisfied the exhaustion requirement because they were all
presented to the Appeals Court with some citation or reference to
federal cases. He explains that our precedent, Barresi v. Maloney
296 F.3d 48, 52 (1st Cir. 2002), permitting us to review certain
"backdrop" materials in some cases, in combination with
Massachusetts' procedural rules, effectively renders his brief to
the Appeals Court "presented" to the SJC, meaning that all the
arguments he made before the Appeals Court were made to the SJC.
The government responds by arguing that our decision in Barresi has
been invalidated by the Supreme Court's more recent decision in
Baldwin v. Reese, 541 U.S. 27 (2004).
We begin with the two claims that were presented in the
ALOFAR, which the district court found to be unexhausted: first the
joint venture claim and then the sufficiency claim. We will
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briefly comment on the government's argument about the continued
vitality of our Barresi decision in the context of the joint
venture claim. We then turn to the claims that were omitted
entirely from the ALOFAR. Our review of the district court's
decision regarding exhaustion is de novo. Goodrich v. Hall, 448
F.3d 45, 47 (1st Cir. 2006); Barresi, 296 F.3d at 51.
A. Joint Venture Claim
One of Clements' three ALOFAR claims — the joint venture
claim — was presented to the SJC solely in terms of state law. The
portion of Clements' ALOFAR discussing this claim relied on no
federal cases and did not label the claim as federal. It also made
no arguments using vague (and possibly federal law based) phrases,
such as "due process." Clements argues, nonetheless, that this
claim was exhausted because, under Barresi, 296 F.3d at 52, the
exhaustion analysis should include a review of "backdrop"
materials, such as the Appeals Court brief, wherein he says that
the federal nature of his claim was made clear. In order to
evaluate this claim, we must determine whether Barresi applies to
a claim styled like Clements' joint venture claim.
1. Barresi v. Maloney
In Barresi, we held that, where a claim has not been
abandoned before the state's highest court, the exhaustion analysis
includes an examination of the "'backdrop against which [] later
filings [must] be viewed,'" 296 F.3d at 52 (second alteration in
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original) (quoting Scarpa v. DuBois, 38 F.3d 1, 7 (1st Cir. 1994)),
and that backdrop includes "the pleadings and filings
submitted . . . to lower state courts," id.6 Barresi also
recognized the continued validity of the "four corners rule," see
Mele, 850 F.2d at 821-23, and held that the "backdrop" materials
could only be consulted "under certain circumstances." 296 F.3d at
52.
At that time, we did not specify what those limited
circumstances might be. However, in Barresi itself, the ALOFAR at
issue included claims regarding the right to confront adverse
witnesses and due process, both of which are claims that may be
grounded either in state law or federal law or both, and cited
state court cases that relied upon federal law. Id. at 53-54.
Therefore, we found that Barresi's ALOFAR minimally satisfied the
exhaustion requirement. As part of the explanation for that
conclusion, we noted that the same claims had been raised in the
intermediate appellate brief, where Barresi had directly cited
federal precedents. Id. at 55-56.
We have subsequently said that the Barresi backdrop rule
applies only in cases where the ALOFAR (or other petition to a
state supreme court) was ambiguous about the federal nature of a
6
Although Barresi did not explicitly define or explain the
term "abandoned," that term has been interpreted to mean that a
claim was omitted entirely, meaning not argued on either state or
federal grounds, from the ALOFAR (or similar petition to a state's
highest court).
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claim, as it was in Barresi. See Josselyn v. Dennehy, 475 F.3d 1,
3-4 (1st Cir. 2007) (noting that Barresi's "backdrop" principle
applies when there is ambiguity in the ALOFAR regarding the federal
nature of the claim); Goodrich, 448 F.3d at 48 (reviewing the
petitioner's lower court briefs as part of the exhaustion analysis,
because the ALOFAR relied primarily on state cases, but was
somewhat ambiguous about the source of the legal claim).
Because this case involves an ALOFAR that was not
ambiguous, the Barresi "backdrop" principle, assuming it is still
valid, provides no assistance to Clements. We add that qualifier
about the continuing validity of the "backdrop" principle because
of the Supreme Court's decision in Baldwin v. Reese.
In Baldwin, 541 U.S. at 32, the Court held that, where a
federal claim was not included in a petition, the exhaustion
analysis could not encompass materials beyond the petition or brief
filed with the state's highest court. In that case, the defendant
had filed a petition seeking discretionary appellate review by the
Oregon Supreme Court and had argued some claims based on federal
law and other claims based only on state law. The defendant later
filed a habeas petition and argued that at least one of the claims
which was presented on state law grounds could be deemed exhausted
because a review of the intermediate appellate court opinion showed
that he had made federal law arguments on that claim below.
Pursuant to Oregon's procedural rules, Oregon's Supreme Court
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justices had access to the lower court opinions in cases for which
a petition was filed, but their rules did not require them to
review such opinions. Id. at 31. Rather, the rules required a
party seeking review to assert all claims in the appellate brief.
At the outset of its analysis, the Supreme Court noted
its assumption that the defendant's "petition by itself did not
properly alert the Oregon Supreme Court to the federal nature of"
the claim. Id. at 30.7 The Court then reasoned that, in such a
context, permitting the exhaustion inquiry to include a review of
the lower court opinion simply because the state court judges had
an "opportunity" to review it would effectively mean "that those
judges must read the lower court opinions — for otherwise they
would forfeit the State's opportunity to decide that federal claim
in the first instance." Id. at 31. The Supreme Court found that
burden incompatible with the "considerations of federal-state
comity that the exhaustion requirement seeks to promote." Id. at
7
Although the Supreme Court clearly assumed that Baldwin's
petition did not itself notify the state court that a federal claim
was intended, the petition in that case was not entirely clear.
The disputed claim involved the ineffective assistance of appellate
counsel and relied only on state law. However, the petition raised
a parallel claim regarding the ineffective assistance of the
defendant's trial counsel, and did make federal law arguments for
that claim. 541 U.S. at 30. Therefore, the petition in Baldwin
was, in a certain sense, ambiguous, much like the ALOFAR in
Barresi, because a reasonable jurist might have concluded that the
defendant intended to make state and federal arguments as to both
claims, given that they were based on the same legal principle, and
that he simply failed to explicitly articulate federal law grounds
for the claim concerning appellate counsel.
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32. Therefore, the Court held that "ordinarily a state prisoner
does not 'fairly present' a claim to a state court if that court
must read beyond a petition or a brief . . . that does not alert it
to the presence of a federal claim in order to find material . . .
that does so." Id.
The Barresi approach to the exhaustion analysis may be
incompatible with Baldwin. Barresi permits us to consider lower
court pleadings or opinions where the state court did not (and was
not required to) consider them itself. However, as we have
explained, we subsequently limited the Barresi backdrop principle
to cases in which there is an ambiguity in the ALOFAR about the
federal nature of the claim. Whether Baldwin forecloses
consideration of backdrop materials even in cases of ambiguous
petitions is a question we need not decide here because Clements'
joint venture claim is unmistakably couched only in state law
terms. We therefore reserve the issue of the continuing validity
of Barresi's backdrop principle for a case in which it is directly
raised.
2. Massachusetts' Procedural Rules
Clements offers an alternative to his Barresi argument in
support of his claim that he fairly presented his joint venture
claim to the SJC. He argues that Massachusetts Rule of Appellate
Procedure ("MRAP") 27.1 permits him to rely on the brief that he
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filed with the Massachusetts Appeals Court to demonstrate the
exhaustion of his claim.
MRAP Rule 27.1 says that the full Appeals Court record
should be transferred to the SJC after further appellate review is
granted. At the time of Clements' appeal, the rule also stated
that the SJC appeal would be conducted on the basis of the Appeals
Court briefs.8 See infra note 11 (explaining subsequent alteration
of this rule). Clements contends that after further appellate
review is granted (regardless of whether it is a limited or general
grant9), the entire Appeals Court brief is properly "before" the
8
Massachusetts Rule of Appellate Procedure 27.1 reads in
part:
Within twenty days after the date of the rescript of the
Appeals Court any party to the appeal may file an
application for leave to obtain further appellate review
of the case by the full Supreme Judicial Court. . . . A
copy of the rescript and opinion, if any, of the Appeals
Court shall be appended to the application. . . . If any
three justices of the Supreme Judicial Court shall vote
for further appellate review . . . an order allowing the
application or the certificate, as the case may be, shall
be transmitted to the clerk of the Appeals Court . . . .
The clerk shall forthwith transmit to the clerk of the
full Supreme Judicial Court all papers theretofore filed
in the case and shall notify the clerk of the lower court
that leave to obtain further appellate review has been
granted.
Mass. R. of App. P. 27.1 (a), (b), (e).
The Reporter's Notes at the time Clements' appeal was filed
also indicated that, after further appellate review is granted,
"the case will be reviewed in the Supreme Judicial Court based on
the brief that was earlier filed in the Appeals Court." Id. at
Reporter's Notes to Appellate Rule 27.1(f) — 2001.
9
The SJC has the authority to respond to an ALOFAR in any of
three ways. It may reject an ALOFAR outright, thereby affirming
the Appeals Court decision without further argument or explanation.
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SJC, in the same way that the arguments contained in the ALOFAR
were before the SJC. He contends that MRAP 27.1 has the effect,
therefore, of rendering all the arguments he presented to the lower
court exhausted because the SJC was in possession of the full
Appeals Court record, including his Appeals Court brief. Citing
this "possession," and the provision regarding reliance on the
Appeals Court brief, Clements claims that the SJC is actually
required by state rules to review the lower court papers.
Consequently, he argues, his Appeals Court brief should be treated
as a part of the SJC's evaluation of his claim, just as the ALOFAR
is so treated, and not as additional or independent backdrop
material.
Clements' argument mis-understands the significance of a
limited grant of further appellate review. Clements relies on the
provision which allows an appeal, after further review has been
granted, to be argued on the basis of the Appeals Court brief for
his contention that the entire brief (not just the portion relevant
to a limited grant) must be reviewed by the SJC. See Mele, 850
F.2d at 822 (noting that MRAP 27.1 requires the lower court record
It may also grant an ALOFAR, thereby exercising its discretionary
jurisdiction over the appeal and agreeing to consider all of the
legal questions raised in that appeal. Or, the SJC may issue a
limited grant in response to an ALOFAR, meaning that it has agreed
to consider a single discrete issue (or multiple issues, but fewer
than all) on appeal. See infra note 10. In this case, the SJC
chose the last of these options, and thus reviewed only one of the
three issues presented to it in Clements' ALOFAR.
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to be forwarded to the SJC "only if — and after — it grants an
ALOFAR"). As we have noted, the SJC in this case granted further
review on only one issue (the sufficiency claim). Under
Massachusetts rules, when the SJC issues a limited grant, it does
not decide any issues beyond the one (or ones) granted review.10
For this reason, the formal transfer of the Appeals Court record to
the SJC does not require the SJC to review briefing or other
materials relating to issues beyond the one(s) for which review was
granted. Here, the SJC's receipt of the lower court record,
including the Appeals Court brief, is relevant only to the one
issue (sufficiency of the evidence) on which it exercised its
appellate jurisdiction. On the issues for which review was denied,
such as the joint venture claim, the physical transfer of the
record and the use of the Appeals Court brief for argument on the
sufficiency claim are irrelevant to the exhaustion inquiry.
We find further support for this conclusion in the
general principles articulated in Baldwin, 541 U.S. at 31-32.
Clements' interpretation of MRAP 27.1 would effectively require the
SJC to read and evaluate all of the arguments presented to the
10
By contrast, if the SJC issues a general grant of further
appellate review, it may review any issue in the case, regardless
of whether the appellant specifically raised it in the ALOFAR. In
other words, a general grant renders the entire Appeals Court
record subject to the SJC's jurisdiction, while a limited grant
places only discrete issues within the SJC's jurisdiction. See
Bradford v. Baystate Med. Ctr., 613 N.E.2d 82, 85 (Mass. 1993). We
do not address here the contours of an exhaustion analysis in the
context of a general grant of further appellate review.
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lower court after even a limited grant of further review, which is
precisely what Baldwin sought to preclude. In claiming that a
limited grant of further review places the full record (including
both the trial court and appeals court proceedings) before the SJC,
and that the exhaustion analysis should encompass that full record,
Clements invites the federal habeas court to ignore the state's
procedural rules. However, disregarding the difference between a
limited grant and a general grant would contravene Baldwin.
Baldwin clearly limits the exhaustion analysis to the materials
that a state's highest court reviewed while deciding whether to
grant a discretionary appeal or evaluating such an appeal on its
merits. Id. at 32. Materials that are merely accessible to that
court are not to be reviewed in an exhaustion inquiry.
Under MRAP 27.1, the portion of the Appeals Court brief
relating to the joint venture claim was not before the SJC when it
reviewed Clements' appeal on the merits. Therefore, our review of
the district court's finding that the joint venture claim was not
exhausted must be based solely on the contents of the ALOFAR.
3. Exhaustion of the Joint Venture Claim
Clements has not sought to persuade us that his ALOFAR
described, or even hinted at, a federal basis for his joint venture
claim. The ALOFAR's discussion of this claim refers only to state
law, and none of the cited state cases relied on federal law. The
federal basis for the claim was not presented "fairly and
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recognizably," Casella, 207 F.3d at 20, nor did Clements articulate
a federal law argument "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, 38 F.3d at 6. Without any references,
explicit or implicit, to federal law or principles, the ALOFAR's
presentation of the joint venture claim did not apprise the SJC of
a possible federal error in the state court's decision. Therefore,
we agree with the district court's conclusion that the joint
venture claim was not exhausted.
B. The Sufficiency Claim
Unlike the joint venture claim, the SJC granted Clements
further appellate review for his sufficiency claim. This important
fact distinguishes our analysis of this claim from all other claims
in this case, as well as the claims discussed in recent cases such
as Goodrich, 448 F.3d at 47, and Josselyn, 475 F.3d at 3-4 (where
the claims at issue were not even mentioned in the ALOFAR and were
deemed abandoned when the ALOFAR was filed with the SJC). The
grant of further appellate review is significant, as we have
explained, because of the procedural rules in Massachusetts.
Prior to a 2001 amendment, MRAP 27.1(f) stated that after
further appellate review is granted, a party may elect to proceed
with the appeal before the SJC on the basis of the Appeals Court
brief previously filed or may petition for permission to submit a
new ("separate or supplemental") brief. See Mass. R. App. P.
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Reporter's Notes -- 2001. Clements requested, and was granted,
permission to file a new brief. At the time of Clements' appeal,
the Massachusetts Rules did not expressly indicate whether the new
brief would be considered exclusively or alongside the Appeals
Court brief. Because the Rules said that a new brief may be
supplemental, we assume here that the SJC reviewed both the Appeals
Court brief (on the sufficiency issue only) and the new or
supplemental brief.11 Therefore, we examine the ALOFAR, the
"supplemental" brief to the SJC, and the relevant portion of the
Appeals Court brief — the materials actually reviewed by the SJC —
to determine whether Clements' sufficiency claim was exhausted.
In his ALOFAR, relying on Massachusetts cases, Clements
urged the SJC to reverse his conviction because the "inconsistent,
recanted, extra judicial grand jury testimony" tying him to the
crime was not corroborated by any more reliable evidence, and
11
The government places significant weight on the fact that
Clements labeled his new brief simply as "Brief" and did not
designate it a "Supplemental" brief. The title of the brief, as it
appeared on the cover page, was "Brief and Supplemental Record
Appendix." The government filed a responsive brief, which it
titled "Supplemental Brief." We think the labels applied to these
briefs are not helpful and we give them no weight. Our assumption
is, however, buttressed by a recent change in the Rules. In 2004,
the MRAP were modified so that a party who now elects to file a new
brief must rely exclusively on that brief; in other words, the
current rules require each party to submit to the SJC a single
brief, which can be either the Appeals Court brief or (with the
SJC's permission) a new brief. Mass. R. App. P. 27.1 (f) (2004
Amendment). This change suggests that previously parties were
arguing in reliance on both the Appeals Court brief and the
"separate or supplemental" brief.
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therefore was insufficient under Commonwealth v. Daye, 393 Mass. 55
(1984). Clements argues that this claim was exhausted because his
Appeals Court brief included a citation to a Supreme Court
decision, Barber v. Page, 390 U.S. 719, 725 (1968), for the simple
proposition that the right to confront adverse witnesses is "a
trial right."12
We find it doubtful that this single cite to a Supreme
Court case is enough to satisfy the fair presentation requirement.
However, Clements' Appeals Court brief did label this claim as
follows: "The Court violated Clement's rights pursuant to the Sixth
and Fourteenth Amendments as well as Article XII of the
Massachusetts Declaration of Rights, when it held at trial and on
the motion for a new trial that the jury could consider Willis'
grand jury identification as substantive evidence of Clement's
[sic] guilt." In Baldwin, the Supreme Court found that such
labeling of a claim would be enough to satisfy the fair
presentation requirement. 541 U.S. at 32 (noting that a petitioner
who "wish[es] to raise a federal issue can easily indicate the
federal law basis for his claim in a state-court petition or brief,
for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim on
12
Clements' ALOFAR and Supplemental Brief indisputably did not
argue this claim on a federal law basis. The arguments therein
relied only on state law. The state cases cited by Clements also
did not rely upon federal law.
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federal grounds, or by simply labeling the claim 'federal'").
Therefore, with this label the sufficiency claim was exhausted, and
the district court erred in ruling otherwise.
C. Clements' Four Other Claims
Clements' habeas petition included, in addition to the
three ALOFAR claims (the joint venture and sufficiency claims
discussed above, and the jury hold-out claim found exhausted by the
district court), four additional claims.13 Three of these four
claims were presented to the Appeals Court, but none were raised
before the SJC because they were not mentioned in the ALOFAR.14
Both Baldwin, 541 U.S. at 32, and Barresi, 296 F.3d at 52
n.1, explicitly hold that claims omitted from an ALOFAR (or similar
petition) are unexhausted. See also Josselyn, 475 F.3d at 3 ("We
observed [in Mele], that finding exhaustion where a claim appeared
in the Appeals Court's decision but was omitted from the ALOFAR
13
One of these claims was presented in tandem with the jury
hold-out claim, as described above. See supra note 3.
14
These claims were as follows: Habeas claim one was a due
process violation of Clements' right to a fair trial, based on his
absence from the courtroom during the trial court's inquiry into
one of the juror's potential biases. Habeas claim four was a
cumulative error claim, based on all of the mistakes Clements
alleges were made by the trial court. This claim was not mentioned
by Clements in his brief filed with us. Habeas claim five was a
due process violation resulting from the trial court's admission of
evidence of Clements' prior bad acts (namely, his prior and current
— at the time of the crime — involvement with drug use and sales).
The second sub-part of habeas claim two, see supra note 3, argued
that the trial judge committed error in failing to order a mistrial
after the jury indicated its deadlock twice.
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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 . . . .'") (second alteration in original)(quoting Mele, 850
F.2d at 823). The district court therefore correctly ruled that
these four claims, omitted from the ALOFAR, were not exhausted.
D. Nature of the Remand
We have now determined that, in addition to the jury
hold-out claim deemed exhausted by the district court, the
sufficiency claim was also exhausted. Clements' habeas petition
remains mixed, and he cannot proceed on a mixed petition. See
Rose, 455 U.S. at 520-22. Where a petition is deemed mixed,
district courts must either dismiss the petition (in compliance
with the "total exhaustion rule" announced in Rose, id. at 522) or
permit the petitioner to dismiss his unexhausted claims, id. at
520. Therefore, we remand the petition to the district court,
where Clements should be given the opportunity to dismiss his
unexhausted claims. See Kelly v. Small, 315 F.3d 1063, 1069-70
(9th Cir. 2003) (remanding an entire petition to the district
court, after finding three claims exhausted despite district court
finding to the contrary, and instructing the district court to
allow the petitioner an opportunity to dismiss unexhausted claims);
see also Vang v. Nevada, 329 F.3d 1069, 1076 (9th Cir. 2003);
Valerio v. Crawford, 306 F.3d 742, 771 (9th Cir. 2002) (en banc);
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Rockwell v. Yukins, 217 F.3d 421, 425 (6th Cir. 2000); Murray v.
Wood, 107 F.3d 629, 632 (8th Cir. 1997).15 If Clements declines to
dismiss his unexhausted claims, the district court should dismiss
the entire petition without prejudice.
III.
The final issue on appeal is the district court's denial
of a stay of the entire petition to allow Clements to return to
state court with his unexhausted claims. We affirm the court's
decision. Although the court entered its provisional order before
Rhines v. Weber, 544 U.S. 269 (2005), was decided, and therefore
did not apply the standard articulated therein, its result is
consistent with that standard.
In Rhines, the Court identified the three prerequisites
for the "stay and abeyance" procedure. Id. at 277.16 The phrase
"stay and abeyance" means that the petitioner would receive a stay
in his federal habeas case, permitting him to return to state court
to complete the requirements for exhaustion on any unexhausted
15
One court has used a different approach, simply affirming
the dismissal of the unexhausted claims and remanding the exhausted
claims. See Akins v. Kenney, 341 F.3d 681, 687 (8th Cir. 2003),
vacated on other grounds, 544 U.S. 957 (2005).
16
The "stay and abeyance" procedure is a response to AEDPA's
one-year statute of limitations and total exhaustion requirement;
it was endorsed by a number of circuit courts, including ours,
prior to the Supreme Court's decision in Rhines. See, e.g.,
Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001);
Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001); Freeman v.
Page, 208 F.3d 572, 577 (7th Cir. 2000); Calderon v. United States
Dist. Ct., 134 F.3d 981, 986-88 (9th Cir. 1998).
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claims, and he could subsequently return to federal court to pursue
his habeas claims. The Court held that this procedure would be
appropriate where: (1) "the district court determines there was
good cause for the petitioner's failure to exhaust his claims first
in state court," id., (2) the "unexhausted claims are potentially
meritorious," id. at 278, and (3) "there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics,"
id. In cases where these criteria are not satisfied, the Supreme
Court held that "the [district] court should allow the petitioner
to delete the unexhausted claims and to proceed with the exhausted
claims if dismissal of the entire petition would unreasonably
impair the petitioner's right to obtain federal relief." Id.
Although the district court did not have the benefit of
the Rhines decision before issuing its provisional order, it
nonetheless engaged in a version of a "good cause" analysis.17 The
court found that the omission of most of Clements' Appeals Court
claims from his ALOFAR was the result of a strategic decision by
Clements and his lawyer and could not constitute good cause.
17
The court began its analysis by observing that, in its view,
"staying the petition pending the pursuit of new relief in the
state courts should be reserved only for exceptional cases where it
would be inequitable or unjust to do otherwise, such as where it
was impossible or impracticable for the petitioner to have pursued
the unexhausted claims in the state proceedings that resolved the
exhausted ones." 359 F. Supp. 2d at 12. This language suggests
that the district court may have used a more rigorous test than the
Supreme Court's good cause standard. However, as we indicate
below, Clements fails to satisfy either standard, so the difference
is irrelevant.
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Clements has argued that all of his unexhausted claims
should be stayed, pending his return to state court, because of his
(and his counsel's) good faith reliance on the Massachusetts Rules
of Appellate Procedure. He contends that he filed his ALOFAR while
believing that the entire Appeals Court brief would be "presented
to" the SJC, and thus would be included in the exhaustion analysis.
As to the four habeas claims omitted entirely from the
ALOFAR, the intentional decision to omit some claims from the
ALOFAR cannot amount to good cause. We have a long-standing rule
that claims ommitted entirely from an ALOFAR cannot be exhausted.
See Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820-23 (1st Cir.
1988). Therefore, Clements could not have had good cause for
failing to exhaust these claims, and his reliance on the MRAP is
irrelevant. See Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007)
(affirming the district court's denial of a stay and abeyance,
where petitioner asserted good cause for his failure to exhaust
based on counsel's belief that arguments omitted from an ALOFAR
might still be exhausted). The district court did not abuse its
discretion in holding that Clements' decision to omit these claims
from his ALOFAR does not amount to good cause.
Clements has not presented us with a specific argument
about the cause for his failure to exhaust the joint venture claim
(which was included in the ALOFAR, but only on state law grounds).
As to this claim, he again relies on his more general argument
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that, based on the MRAP, he and his counsel had a good faith belief
that the Appeals Court brief would be "incorporated" into the
ALOFAR and, thus, included within our exhaustion analysis.
Inherent in this argument is the notion that the federal cases
cited in the Appeals Court brief in support of the joint venture
claim would suffice to satisfy the exhaustion requirement.
As we have explained above, see supra Part II.B, the 2001
version of the MRAP did not, as Clements suggests, result in
presentation of the full Appeals Court brief to the SJC. His
interpretation of the rules was unjustified. To the extent that
Clements has also implicitly argued that he relied on the Barresi
"backdrop" principle in deciding how to articulate the claims
within the ALOFAR, we find that argument to be implausible. At the
time Clements' ALOFAR was filed, in June 2001, our court had not
yet decided Barresi. Therefore, Clements could not have relied on
Barresi in his decision to present the joint venture claim only on
state grounds.18 Moreover, at that time, Mele, 850 F.2d at 823,
18
We note that Scarpa v. DuBois, 38 F.3d 1, 7 n.3 (1st Cir.
1994), had some language suggesting the possibility of inclusion of
lower court filings in the exhaustion analysis. Scarpa was, in a
sense, a harbinger of Barresi. However, Scarpa did not profess to
alter the "four corners" rule previously articulated in Mele v.
Fitchburg Dist. Court, 850 F.2d 817 (1st Cir. 1988), and seemed to
be limited to its facts. Moreover, the outcome in Scarpa did not
rely on its implicit pre-Barresi logic; we held that the relevant
state law claim presented in the ALOFAR was "functionally
identical" to a federal claim, and therefore was exhausted, id. at
7, based on our decision in Nadworny v. Fair, 872 F.2d 1093, 1099-
1100. In addition, Clements has never claimed that he relied on
Scarpa when filing his ALOFAR. For all of these reasons, we do not
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was the guiding precedent in our circuit and it clearly held that
federal claims ought to be "raised within the four corners of the
ALOFAR." Neither the state rules nor our decisions, then, could
have justified Clements' decision to argue the joint venture claim
exclusively on state law grounds. He has not shown good cause for
his failure to exhaust this claim.
Clements' lack of good cause means that, under Rhines, he
cannot take advantage of the "stay and abeyance" procedure.
Therefore, we affirm the denial of a stay.
IV.
In summary, we affirm the district court's decision
finding five of Clements' claims unexhausted. We reverse the
district court as to Clements' sufficiency claim. His Appeals
Court brief, which was properly before the SJC under the 2001
version of MRAP 27.1, satisfied the exhaustion requirement by
labeling that claim as federal. The petition is remanded to the
district court, so that Clements may decide whether to dismiss his
unexhausted claims. We also affirm the district court's denial of
a stay of his unexhausted claims pending Clements' return to state
court.
So ordered.
find that Clements' failure to exhaust can be explained by our
decision in Scarpa.
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