
USCA1 Opinion

	




                            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                                          2          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                                          3          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.                                          4          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          ________    ____                                          5          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                                          6          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).                                          7          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                                          8          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                                          11          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.          ________                                          12
