
USCA1 Opinion

	




          February 24, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ___________________          No. 92-1912                                               HERMAN HALL JR.,                                Petitioner, Appellant,                                          v.                           SUPERINTENDENT PAUL L. DiPAOLO,                                Respondent, Appellee.                                  __________________               The  opinion of this Court  issued on February  18, 1993, is          amended as follows:               On the cover  sheet, in  the caption, insert  a comma  after          "HALL".               Page 6, line 7, insert "of" between "notice appeal".               Page 9, line 6, " a such" should read "such a".          February 18, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ___________________          No. 92-1912                                              HERMAN HALL, JR.,                                Petitioner, Appellant,                                          v.                           SUPERINTENDENT PAUL L. DiPAOLO,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Herman H. Hall,  Jr., pro se on Application  for Certificate               ___________________   ___ __          of Probable Cause and brief.                                  __________________                                  February 18, 1993                                  __________________               Per Curiam.  Pro se petitioner Herman Hall, a  Massachusetts               __________   ___ __          inmate,  seeks a  certificate  of probable  cause  to appeal  the          dismissal of his second petition for habeas corpus.  The district          court  adopted  the  recommendation  of a  magistrate  judge  and          dismissed the habeas petition  on the ground that Hall  failed to          exhaust his state remedies.  In so doing, the court relied on the          fact that Hall  had previously  filed a  similar habeas  petition          that  was dismissed for nonexhaustion.  For the reasons discussed          below,  we grant the certificate of probable cause and vacate the          dismissal.   We remand  for  consideration of  the issue  whether          exhaustion has  obtained as  a result of  certain post-conviction          motions that Hall filed in state court.                                          I.               On July 29, 1988,  Hall was convicted by a  Suffolk Superior          Court jury of  larceny of  a motor vehicle  and burning  personal          property.    The charges  arose from  Hall's  alleged theft  of a          Cadillac from  the  victims, Earl  Fisher  and his  mother,  Lula          Fisher,  between January  3-6, 1988.   The  Massachusetts Appeals          Court  affirmed   Hall's  conviction  on  direct   appeal  in  an          unpublished decision.   See Commonwealth v. Herman  H. Hall, Jr.,                                  ___ ____________    ____________________          28  Mass.  App.  Ct.  1111  (1990).    On  March  28,  1990,  the          Massachusetts   Supreme  Judicial   Court  (SJC)   denied  Hall's          application for further           appellate review. See 407  Mass. 1101 (1990).1   Hall then turned                            ___                                        ____________________               1We note that Hall, who was represented by appointed counsel          at   trial  and  on  appeal,   filed  pro  se   briefs  with  the                                                ___  __          Massachusetts  Appeals Court  and Supreme  Judicial Court  (SJC).          The Appeals Court considered and rejected the arguments raised in          Hall's pro se brief in its decision  affirming Hall's conviction.                 ___ __          to federal court.               Hall  filed his first  habeas corpus petition  in June 1990.          The  petition,  supplemented  by  multiple  filings,  raised five          claims:               (1)    that  Hall's conviction  resulted  from evidence               gained in an unconstitutional search and seizure (i.e.,               the VX-829 registration);               (2)   that Earl Fisher and another man conspired to "do               an insurance job"  on the  car, and, with  the help  of               officials  from  the  Boston  Fire  Department's  Arson               Squad, framed Hall;               (3)  that Hall was unlawfully arrested in Providence by               Boston Arson Squad officers who, in addition to lacking               probable  cause,  had  no territorial  jurisdiction  to               arrest Hall;               (4)  that  the district attorney tricked  the jury into               believing  that Hall stole  the car and "re-registered"               it in Rhode  Island when,  in fact, the  car was  never               "re-registered."    Hall  alleged that  the  prosecutor               deliberately  misrepresented  the facts  concerning the               car's registrations.                           (5)  ineffective assistance of counsel based on defense               counsel's failure  to (a)  move to suppress  the VX-829               registration evidence, (b)  challenge the lawfulness of               Hall's  arrest, (c)  call  certain witnesses,  and  (d)               impeach Earl Fisher.  Hall also complained that defense               counsel helped the district attorney cover-up the Arson               Squad's misconduct.2          The respondent filed an  answer which raised nonexhaustion, inter                                                                      _____          alia,  as an affirmative defense.   This defense was specifically          ____                                        ____________________          The SJC did not consider Hall's pro se brief; rather, that  court                                          ___ __          returned  Hall's brief  to him  while advising  Hall to  have his          counsel raise his claims.               2In addition to the five claims  enumerated above, Hall also          alleged that the only  black juror was "terrorized" and  that the          prosecution unlawfully erased portions  of the tape recordings of          Hall's probable cause hearing.                                         -3-                                          3          predicated on the  assertion that  none of  Hall's habeas  claims          were raised in Hall's direct criminal appeal.  The district court          adopted the  recommendation of  a magistrate judge  and dismissed          Hall's habeas petition because none of his claims had been raised          in  Hall's application for further appellate review.  See Mele v.                                                                ___ ____          Fitchburg Dist. Court, 850 F.2d 817, 823 (1st  Cir. 1988)(holding          _____________________          "that  an  appealed issue  cannot  be considered  as  having been          fairly  presented to the  SJC for exhaustion  purposes unless the          applicant  has  raised  it   within  the  four  corners  of   the          [application  for further  appellate  review]").3   The  district          court granted Hall's request for a certificate of probable cause,          but  his  appeal  from  this dismissal  order  was  dismissed  as          untimely.  Undaunted,  Hall filed a  second habeas petition  with          the district court.   This second petition essentially reiterated          the five claims identified above, although the petitions  are not          identical twins.4                      A  different  magistrate  judge  recommended  that  Hall's          second habeas  petition be summarily dismissed  because it raised          the same claims as his first and Hall still had failed to exhaust                                        ____________________               3While   the  district   court  did   not  identify   Hall's          ineffective assistance of counsel claim, its finding that none of          Hall's habeas claims were  raised within the four corners  of his          application for further appellate review remains correct.                   4Hall's second habeas petition did  not allege that the lone          black juror had  been terrorized,  nor that  the prosecution  had          erased any tapes.  The second habeas petition also challenged the          sufficiency of the evidence at Hall's trial, a claim that was not          presented in his first petition.                                             -4-                                          4          his  state  remedies.       The   district  court  adopted   this          recommendation and  dismissed  the petition.5    Thereafter,  the          court denied Hall's  request for a certificate  of probable cause          on the same nonexhaustion ground.  Hall has filed a timely notice          of appeal and request for a certificate of probable cause.                                         II.               In answering a habeas corpus petition under 28 U.S.C.  2254,          the respondent is required to  "state whether the petitioner  has          exhausted  his  state   remedies  including  any  post-conviction                                            _______________________________          remedies available to him under the  statutes or procedural rules          _________________________________________________________________          of the state and including also his right of appeal both from the          _________________________________________________________________          judgment  of conviction and from any adverse judgment or order in          _________________________________________________________________          the  post-conviction  proceeding."    See  Rule  5  of  the Rules          _________________________________     ___          Governing  Section  2254  Cases  in the  United  States  District          Courts.  (emphasis supplied).    The record  indicates that  Hall          filed  two pro  se post-conviction  motions in  the Massachusetts                     ___  __          superior  court before his direct appeal was resolved.  The first          of these raised an ineffective assistance of counsel claim, which          the trial court  denied on  the merits and  Hall did not  appeal.          Hall's  second post-conviction  motion  (titled  "Motion for  new          trial/newly discovered evidence") raised  Hall's unconstitutional                                        ____________________               5This dismissal order  was entered before  Hall's objections          to  the magistrate  judge's  report were  filed.   However,  that          report gave Hall ten days from his receipt of the report in which                                             _______          to  file his objections.   Hall filed his  objections on April 6,          1992,  within  the  requisite  ten days  (excluding  weekends  as          required by Fed. R. Civ.  P. 6(a)) of his alleged receipt  of the          report on March 25, 1992.                                         -5-                                          5          arrest  and  search  and  seizure  claims,  as  well  as  a  less          intelligible claim that Hall  could not show his evidence  to the          jury.6   This motion  also was  denied by the  trial judge.   The          record indicates  that Hall filed a pro  se notice of appeal from                                              ___  __          this ruling, but no disposition of this appeal is recorded.  From          all that appears in the record, it may still be pending.                  "'[I]n  determining  whether  a   remedy  for  a  particular          constitutional  claim  is  "available,"  the federal  courts  are          authorized,  indeed required,  to  assess the  likelihood that  a          state  court will accord the  habeas petitioner a  hearing on the          merits of his  claim.'" Carsetti  v. Maine, 932  F.2d 1007,  1012                                  ________     _____          (1st  Cir. 1991)  (quoting  Harris v.  Reed, 109  S. Ct.  at 1046                                      ______     ____          (O'Connor, J.,  concurring)).  Because the  respondent overlooked          Hall's post-conviction  motions in its original  answer to Hall's          first  habeas petition, the district court was not able to assess          the likelihood that exhaustion  has obtained through Hall's post-          conviction  motions.  Yet  it appears likely  that exhaustion has          obtained, if not through Hall's actual presentation of his habeas          claims to the  state courts,  then by a  procedural default.   We          explain.               "[T]he exhaustion  doctrine requires that a  state defendant          seeking to overturn his conviction on federal grounds first  must                                        ____________________               6Our descriptions of the substance of Hall's post-conviction          motions  are drawn  from his  habeas petitions.  Their procedural          history  in the  state  court is  disclosed by  the Massachusetts          superior court  docket sheet appended to  the government's answer          to Hall's first habeas petition.                                         -6-                                          6          give  the  state  courts 'a  fair  opportunity'  to consider  his          claims.  (citation omitted).   This means that  the habeas corpus          petitioner  must  have presented  the  substance  of his  federal          constitutional claim to  the state appellate  courts so that  the          state had the first chance  to correct the claimed constitutional          error."  Lanigan  v. Maloney, 853  F.2d 40,  42 (1st Cir.  1988),                   _______     _______          cert. denied, 488 U.S.  1007 (1989).  However, exhaustion  may be          _____ ______          found  even where the  habeas petitioner has  never presented his          federal claims to state court.  Such would be the case if, at the          time the habeas petition  was filed, there was no  longer a state          remedy available due to the petitioner's procedural default.                "[A] federal  habeas court need  not require that  a federal          claim be presented to a state court if it is clear that the state          court would hold the claim procedurally barred."  Harris v. Reed,                                                            ______    ____          489 U.S. 255,  263 n. 9  (1989).  Where  exhaustion has  obtained          through  a procedural  default, the  habeas petitioner  must show          cause for that default and prejudice arising therefrom before the          federal court may reach  the merits of  his habeas claims.   See,                                                                       ___          e.g., Teague v.  Lane, 489  U.S. 288, 298  (1989); cf. Church  v.          ____  ______     ____                              ___ ______          Sullivan, 942 F.2d 1501, 1507 n.5 (10th Cir. 1991).  In the usual          ________          case, victims of  a fundamental miscarriage of  justice will meet          the "cause plus prejudice" test.  See Murray v. Carrier, 477 U.S.                                            ___ ______    _______          478,  495-96 (1986).  However, in  those rare cases where that is          not so,  a  federal  habeas  court may  consider  a  procedurally          defaulted  claim absent a showing  of cause for  the default only                                         -7-                                          7          where the  petitioner demonstrates that his  is an "extraordinary          case, where  a constitutional violation has  probably resulted in          the conviction of one  who is actually innocent...." Id.  at 496;                                                               ___          Thigpen v. Thigpen, 926 F.2d 1003, 1010 n. 17 (11th Cir. 1991).           _______    _______               Assuming that  neither of Hall's post-conviction motions can          be fairly said to have raised his  federal habeas claims, Hall is          now in the  position of  having to file  a third  post-conviction          motion in  state  court.   Under  Massachusetts law,  a  criminal          defendant  may file  a motion  for post-conviction relief  at any          time,  however any grounds not raised in a defendant's first such          motion  are  waived unless  (a)  the  trial  judge exercises  his          discretion to allow said grounds to be heard on  their merits, or          (b)  the defendant  shows  that  the  new  grounds  raised  in  a          successive post-conviction  motion could not have  been raised in          his first motion.  See Massachusetts R.  Crim. P. 30.  As most of                             ___          the  evidence Hall has submitted in support of his claims appears          to  have  been available  to him  when he  filed his  first post-          conviction motion, it appears likely that he will be held to have          waived  his habeas  claims upon  filing a  third motion  with the          superior court.   See,  e.g., Commonwealth v.  Deeran, 397  Mass.                            ___   ____  ____________     ______          136,  139  (1986)("[A]  defendant   must  assert  all  reasonably          available grounds for post-conviction relief in his first rule 30          motion,  or those  claims  are lost....This  waiver rule  applies          equally to  constitutional claims  which could have  been raised,          but    were   not    raised,   in   the    defendant's   original                                         -8-                                          8          motion.")(internal  citations  omitted).   If the  district court          concludes  that the Massachusetts  courts are likely  to so hold,          state  review  on the  merits would  no  longer be  available and          exhaustion  could be found. See,  e.g., Engle v.  Isaac, 456 U.S.                                      ___   ____  _____     _____          107, 125-26 n. 28 (1982).   If exhaustion obtains through such  a          procedural default, then Hall must show cause for his default and          prejudice arising  therefrom before the district  court may reach          the merits of  his claims.   Alternatively, he  must show that  a          constitutional  violation has resulted  in his conviction despite          his innocence.               On  the  other  hand,  a  finding  that  Hall  has  actually          exhausted his  state remedies may  be warranted if  Hall's second          post-conviction motion  raised his  habeas claims and  his appeal          from  the denial of that  motion has remained  pending since 1988          without  justification.  See Dixon v. Florida, 388 F.2d 424, 425-                                   ___ _____    _______          26  (5th Cir. 1968)(noting that  exhaustion may result from lapse          of  time where  state court  record disclosed  19 month  delay in          processing of habeas  petitioner's post-conviction motion).   Cf.                                                                        ___          Odsen v. Moran, 445  F.2d 806, 807 (1st  Cir. 1971) (per  curiam)          _____    _____          (three  year delay  in processing  of habeas  petitioner's direct          criminal appeal  may justify setting comity  aside and fashioning          remedy according to circumstances).   Alternatively, we note that          Hall submitted pro  se briefs to the  Massachusetts Appeals Court                         ___  __          (which considered  and rejected his  claims) and  to the  Supreme          Judicial Court (which apparently  did not consider Hall's claims,                                         -9-                                          9          but rather  mailed Hall's brief  back to him).   If  these briefs          were submitted  in connection  with Hall's appeal  on his  second          post-conviction motion and raised Hall's habeas claims, then Hall          could  be held to have exhausted his state remedies by submitting          a pro  se brief to the SJC.   See Mele v.  Fitchburg Dist. Court,            ___  __                     ___ ____     _____________________          850 F.2d at 820, (habeas petitioner "must  fairly present - or do                                                                      _____          his  best to  present  -  "  habeas  claims  to  state's  highest          _____________________          court)(emphasis  supplied).    After  all,  exhaustion  does  not          require  that the  SJC have  addressed or decided  Hall's federal          claims. See Gagne v. Fair, 835 F.2d 6, 8 (1st Cir. 1987).   I   n                  ___ _____    ____          summation,  where  the  district   court  did  not  consider  the          possibility  that  exhaustion  may have  obtained  through Hall's          post-conviction motions, a remand is required.                 Accordingly, the  petitioner's request for a  certificate of               ____________________________________________________________          probable cause is granted. The judgment of dismissal  is vacated.          _________________________________________________________________          The case is remanded for further proceedings consistent with this          _________________________________________________________________          opinion.          ________                                         -10-                                          10
