
USCA1 Opinion

	




        July 17, 1992                                 ____________________        No. 91-2246                                    RALPH BYRNES,                                Petitioner, Appellant,                                          v.                                  GEORGE VOSE, ETC.,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                 Cyr, Circuit Judge,                                      _____________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Edward  J.  Romano  with  whom  Paul   DiMaio  was  on  brief  for            __________________              _____________        appellant.            Aaron L.  Weisman, Special Assistant  Attorney General, with  whom            _________________        James E. O'Neil, Attorney General, was on  brief for appellee State of        _______________        Rhode Island.                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    Fust , District Judge.  Petitioner Ralph Byrnes appeals                    _____________________          a  Rhode Island federal district court decision dismissing his 28          U.S.C.   2254 state conviction habeas corpus petition for failure          to  first  exhaust state  postconviction  remedies.1   He  argues          before us,  as he did before the district court, that it would be          futile to  conduct further  collateral proceedings to  review his          conviction in the  Rhode Island courts, since a codefendant, John          Ouimette,  sought and  was denied  postconviction redress  in the          state  courts prior  to successfully  receiving habeas  relief in          federal  court.  See Ouimette v. Moran, 762 F.Supp. 468 (D.R.I.),                           ___ _________________                                              ____________________             1 Section 2254(b) & (c) of Title 28 provide:                          (b)   An  application for  a writ  of                       habeas corpus  in behalf of a  person in                       custody  pursuant to  the judgment  of a                       State  court shall not be granted unless                       it  appears  that   the  applicant   has                       exhausted the remedies available  in the                       courts of  the State,  or that there  is                       either  an  absence  of available  State                       corrective process or  the existence  of                       circumstances  rendering  such   process                       ineffective to protect the rights of the                       prisoner.                          (c)  An applicant shall not be deemed                       to have exhausted the remedies available                       in the  courts of the State,  within the                       meaning of  this section, if  he has the                       right  under the  law  of  the State  to                       raise, by any  available procedure,  the                       question presented.             28 U.S.C.   2254(b), (c).                                          2          aff'd, 942  F.2d 1 (1st Cir.  1991).  The district  court decided          _____          that  the futility  exception to  the section  2254(b) exhaustion          requirement  did not apply to  Byrnes since he  and Ouimette were          convicted  of different  substantive  crimes  based on  different          testimony.  Byrnes v.  Vose, 777 F.Supp.  171 (D.R.I. 1991).   We                      _______________          find no error  on the part of the district  court, and affirm the                                                                 affirm          dismissal  of  Byrnes'  state  conviction  federal  habeas corpus          petition without prejudice.                                          I.                                          I.                    Petitioner Byrnes was  convicted for his  participation          in the notorious 1975 Bonded Vault Company robbery in Providence,          Rhode  Island.   Nine masked  men entered  this commercial  safe-          deposit company, robbed its employees at gunpoint, and broke into          146 safety deposit boxes.  They stole approximately $4 Million in          cash and valuables.   State v.  Byrnes, 433  A.2d 658, 661  (R.I.                                ________________          1981).2                    Byrnes' petition for habeas relief is based on the same          ground that  was successfully presented  in the federal  forum by                                              ____________________             2The  reader  who  wishes   to  delve  into  the  historical             background of  the  matter on  appeal  is referred  to  this             court's opinion in Ouimette  v. Moran, 942 F.2d 1  (1st Cir.                                __________________             1991), where we upheld the  district court's grant of habeas             relief to  codefendant John F. Ouimette,  Ouimette v. Moran,                                                       _________________             762 F.Supp.  468 (D.R.I. 1991), as well as to the opinion of             the Rhode Island  Supreme Court  which affirmed  appellant's             state court conviction.  State v. Byrnes, 433 A.2d 658 (R.I.                                      _______________             1981).                                         -3-                                          3          codefendant Ouimette after exhausting  state remedies.  He claims          that the state prosecutor's failure to disclose a key prosecution          witness' extensive criminal record violated his due process right          under  Brady  v. Maryland,  373 U.S.  83  (1963).   Ouimette, 762                 __________________                           ________          F.Supp. at 479-80; 942 F.2d at 12-13.                      The   record  developed  by   the  district  court  and          confirmed by us  during oral argument shows, however, that Byrnes          and Ouimette were convicted of different levels of involvement in          the  robbery.   Ouimette  was not  a  participant in  the  actual          robbery.   He  was convicted  as a  conspirator and  an accessory          before  the fact.   The  testimony that  brought about  the Brady                                                                      _____          claim  was  that of  Robert Dussault,  and  he did  not implicate          Byrnes.    Byrnes,  in  contrast,  was  convicted  as  an  actual          participant in the robbery, primarily because of the testimony of          another participant,  Anthony Danese.   Clearly, the  evidence at          trial against Byrnes and  Ouimette was not  the same.  Byrnes  v.                                                                 __________          Vose, 777 F.Supp. at 172.            ____                    Petitioner  Byrnes also  conceded during  oral argument          that,  especially after  the  federal court  habeas decisions  in          Ouimette,  petitioner has a strong due process argument in either          ________          federal or state forums.  Notwithstanding, petitioner's  argument          is to  the effect  that because  of the egregious  nature of  the          state  prosecutor's  conduct,  it  would  be  futile  to  subject                                         -4-                                          4          petitioner  to  further  state  court  proceedings  to  determine          whether  the errors at  trial were "harmless  beyond a reasonable          doubt."  See Chapman v. California, 386 U.S. 18, 24 (1967).                   ___ _____________________                    In Duckworth v.  Serrano, 454 U.S.  1, 3-4 (1981)  (per                       _____________________          curiam), the  United States  Supreme Court  refused to  create an          exception to the exhaustion requirement where a "clear violation"          of  the defendant's  constitutional rights  is established.   The          Court  found that  "obvious constitutional  errors, no  less than          obscure  transgressions, are  subject  to the  requirements of             2254(b)," thus obligating the  lower court to dismiss  the habeas          petition.   Id.  at  4.   The  Court  also rejected  an  argument                      ___          favoring  exception  to  the  exhaustion   requirement  based  on          judicial economy.  The Court noted that such a rule  would likely          increase, rather than decrease, federal habeas corpus  petitions,          since  defendants could  first  seek a  federal determination  of          whether  the claim  reached the  requisite level  of  validity to          dispense  with the  exhaustion requirement.   Finally,  the Court          noted  that even in  the case where  a clear  violation is found,          considerations of  comity require  that state courts  be afforded          the   opportunity,  in   the   first  instance,   to  correct   a          constitutional violation before a  federal court intervenes.  Id.                                                                        ___          See also  Picard v. Connor, 404 U.S. 270, 275 (1971); Nadworny v.          ________  ________________                            ___________          Fair,  872  F.2d 1093,  1096  (1st  Cir. 1989)  ("Requiring  that          ____                                         -5-                                          5          remedies  be  exhausted  in   state  courts  is  merely  comity's          juridical tool, embodying the federal sovereign's respect for the          state courts' capability to adjudicate federal rights."); Mele v.                                                                    _______          Fitchburg  District Court, 850 F.2d  817, 819-20 (1st Cir. 1988).          _________________________          We  think that  petitioner's futility  argument is  foreclosed by          Duckworth and should be rejected.          _________                                         II.                                         II.                    With  respect   to  the   "egregious"  nature   of  the          prosecution  misconduct at the state trial, we find no basis, nor          has petitioner proffered any,  as to why the Rhode  Island courts          are not fully capable of determining whether the misconduct found          in Ouimette "tainted" Byrnes' conviction sufficiently to  require             ________          habeas relief.3   To the  extent that petitioner  is asking  this          court to examine the merits of his claim without first presenting          it  in  the  state judicial  forum,  we  think  the reasoning  of          Duckworth  with   respect  to   "clear  violations"   is  equally          _________          applicable to "egregious" ones  and petitioner must first exhaust          state judicial remedies before seeking redress in federal court.                    Petitioner has  failed to convince us  that recourse to          the  state postconviction  proceedings available in  Rhode Island          dooms him to the same fate  as that originally suffered there  by          codefendant Ouimette.  In fact, events subsequent to our decision                                              ____________________             3At  oral argument,  counsel for petitioner  suggested that,             based  on all that had transpired with respect to this case,             "politics may rear its ugly head" and deny petitioner a fair             opportunity  to  prosecute his  claim  in  the Rhode  Island             courts.   No  evidence  has been  proposed  to support  this             proposition   and,   accordingly,  we   reject  petitioner's             suggestion that the  Rhode Island courts will not fairly and             impartially discharge their duty of  applying the law to the             facts placed before it.                                         -6-                                          6          in Ouimette suggest that the Rhode Island judiciary has seriously             ________          addressed  the  issues  raised  in  the  Ouimette  federal  court                                                   ________          decisions.   Following  our affirmance  of the  Ouimette district                                                          ________          court decision,  the Chief  Justice of  the Rhode Island  Supreme          Court ordered the Rhode Island Commission on  Judicial Tenure and          Discipline   to  investigate   the   underlying  allegations   of          prosecutorial misconduct.   A report  has been  rendered and  the          same  has been reviewed and  adopted by the  Rhode Island Supreme          Court.  In re DeRobbio, 604 A.2d 1240 (R.I. 1992).                    ______________                    We are  convinced that the Rhode  Island judiciary will          insure  that this matter  receives careful judicial consideration          and  that  with  respect   to  criminal  prosecutions  under  its          jurisdiction, "justice [will] satisfy the appearance of justice."          Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864          ______________________________________________          (1988)  (quoting In  re  Murchison,  349  U.S.  133,  136  (1955)                           _________________          (quoting Offut v. United States, 348 U.S. 11, 14 (1948))).                     ______________________                    At   this  time,  we   have  no  basis   to  find  that          petitioner's due process claim  will not receive a full  and fair          hearing before the state  tribunals of Rhode Island.   We express          no view on the question whether the circumstances of Ouimette and          Byrnes were  sufficiently similar as  to require  the same  legal          result.                      Petitioner's dismissal  of his 28 U.S.C.    2254 habeas          corpus petition against his state conviction is now Affirmed.                                                              Affirmed                                                              ________                                         -7-                                          7
