
USCA1 Opinion

	




        March 24, 1995          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1818                         JOSEPH ROBERTS, a/k/a JOSEPH CORAL,                                Petitioner, Appellant,                                          v.                                 GEORGE GRIGAS, ETC.,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Valeriano Diviacchi on brief for appellant.            ___________________            Scott  Harshbarger, Attorney  General,  and  William J.  Duensing,            __________________                           ____________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  In September  1984, petitioner, Joseph                      __________            Roberts, was convicted of armed robbery.  His court-appointed            attorney timely  filed a  notice of appeal.   Later,  counsel            filed a  motion to  withdraw which the  Massachusetts Appeals            Court  denied.    Ultimately,  the  Appeals  Court  dismissed            petitioner's  appeal on  November  10,  1986,  counsel  never            having filed a brief on petitioner's behalf.                      Upon discovering this in 1991, petitioner filed, in            the Appeals Court, a  pro se motion to reinstate  his appeal.            In support, he argued that he had not authorized his attorney            to  forego the direct appeal of his conviction.  As a result,            petitioner  went on, his right to the effective assistance of            counsel, as  secured by the Sixth  and Fourteenth Amendments,            had  been violated.  The Appeals Court denied both the motion            to reinstate  and a  subsequent request  for reconsideration.            The  Massachusetts  Supreme  Judicial  Court  ("SJC")  denied            petitioner's request for further appellate review.                      In   April  1992,  petitioner   filed  this  habeas            petition under 28  U.S.C.   2254.  He  again claimed that his            court-appointed attorney's conduct had  been constitutionally            defective.  The district court appointed counsel to represent            petitioner, but  dismissed the habeas petition  on the ground            that petitioner had not exhausted his state remedies.  See 28                                                                   ___            U.S.C.   2254(b).  Specifically, the court held that Mass. R.                                         -3-            Crim. P. 30(b)1 provided petitioner with  a chance to present            his  ineffective  assistance  claim  to  the  courts  of  the            Commonwealth.  Thus, petitioner  was required to exhaust this            remedy under   2254(c).2  We agree.                      As a  matter of comity, "[t]he exhaustion principle            ensures  that  state courts  have  the  first opportunity  to            correct their own constitutional  errors."  Mele v. Fitchburg                                                        ____    _________            Dist. Court, 850 F.2d  817, 819 (1st Cir. 1988).  Although an            ___________            applicant  for the  writ  is not  required  to exhaust  every                                                                    _____            conceivable state procedure before filing his or her claim in            federal court, the applicant "is at risk to present the state            courts with  a fair  opportunity to  confront and  correct an            alleged infirmity."  Id.  at 818-19.  Here, there  appears to                                 ___            be  no question  that petitioner's  motions alerted  both the            Appeals Court and the SJC to the constitutional dimensions of            his  ineffective  assistance of  counsel  claim.   Thus,  the            question is  whether  the context  in  which this  claim  was                                            ____________________            1.  Rule 30(b) provides:                           New  Trial.   The  trial  judge upon                           New  Trial.                      motion in writing may  grant a new  trial                      at  any time if  it appears  that justice                      may not have been  done.  Upon the motion                      the trial judge  shall make such findings                      of fact  as are necessary to  resolve the                      defendant's allegations of error of law.            2.  Section 2254(c) provides that  "[a]n applicant shall  not            be deemed to  have exhausted  the remedies  available in  the            courts of the  State . . . if he has  the right under the law            of  the  State to  raise,  by  any  available procedure,  the            question presented."                                         -4-            raised constitutes "fair presentation."  Castille v. Peoples,                                                     ________    _______            489 U.S. 346 (1989).                      In  Castille, a     2254 petitioner  presented  new                          ________            constitutional  claims in  his request  for allocatur  to the            Pennsylvania Supreme  Court;  such review  is  discretionary.            The  United States  Supreme  Court held  that the  exhaustion            requirement  is  not  satisfied  "where the  claim  has  been            presented for the first and only time in a procedural context            in  which its merits will not be considered unless `there are            special  and  important  reasons  therefor.'"    Id.  at  351                                                             ___            (citation  omitted).   We  think  it  obvious  that when  the            Appeals Court  considers a motion  to reopen or  reinstate an            appeal five years after the appeal's dismissal, its review is            discretionary.  The same goes  for the SJC's decision whether            to grant further appellate review.   Consequently, petitioner            has not exhausted his state remedies.                      "The requisite exhaustion may nonetheless exist, of            course,  if it  is clear  that [petitioner's] claims  are now            procedurally barred under [Massachusetts] law."  See id.  Our                                                             ___ ___            task then  is to  determine whether the  Massachusetts courts            would permit petitioner to  pursue his claim in a  Rule 30(b)            motion.  "[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                                         -5-            the merits of his claim."  Harris v. Reed, 489  U.S. 255, 268                                       ______    ____            (1989) (O'Connor, J., concurring).                      In Commonwealth v. Cowie, 404 Mass. 119, 533 N.E.2d                         ____________    _____            1329  (1989), the  defendant,  whose direct  appeal had  been            forfeited  by  his attorney,  filed a  motion  in the  SJC to            reinstate his  appeal.  A  single justice  denied the  motion            pointing out that the  post-conviction remedies in Rule 30(a)            and  (b) were available.   Defendant then filed  a Rule 30(a)            motion in the superior court in an effort to secure appellate            review.  The court denied the motion for reasons not relevant            here.  The defendant declined the superior court's invitation            to file a Rule 30(b) motion, preferring to appeal to the SJC.                      The  SJC first  rejected defendant's  argument that            the  Constitution required  it  to provide  him  with a  late            appeal.  404 Mass. at 121, 533  N.E.2d at 1331.  In so doing,            it  relied on  Evitts v.  Lucey,  469 U.S.  387  (1985).   In                           ______     _____            Evitts, the Supreme Court  held that the Fourteenth Amendment            ______            due process clause is violated when a criminal defendant does            not  have the effective assistance of counsel on an appeal as            of right.  Id. at 396.  The Court noted, though, that a state                       __            need not provide the  defendant with a new appeal  so long as            the substitute  relief is constitutionally adequate.   Id. at                                                                   ___            399.  As an example of such a remedy  the Court referred to a            post-conviction attack on the conviction.  Id.  Based      on                                                       ___            this,  the SJC held that  Rule 30(b) "fully  accords with due                                         -6-            process as a remedy  for the defendant's frustrated  right of            appeal."  404 Mass. at 122-23, 533 N.E.2d at 1332.                      Petitioner   correctly   points   out  that   where            counsel's  dereliction  results  in  the  loss  of  a  direct            criminal appeal, habeas relief is available without a showing            that  the direct  appeal has  merit.   See Bonneau  v. United                                                   ___ _______     ______            States, 961 F.2d  17, 23 (1st Cir. 1992);  Wilbur v. State of            ______                                     ______    ________            Maine, 421 F.2d 1327, 1330  (1st Cir. 1970).  In Wilbur,  a              _____                                            ______            2254 applicant alleged that his attorney had failed to pursue            a direct appeal  from the applicant's  conviction.  As  here,            the applicant filed a motion to reinstate the appeal, arguing            that he had received ineffective  assistance of counsel.  The            Maine Supreme  Judicial Court denied the  motion, noting that            no injustice would result from its denial.                      We  specifically  found   that  the  applicant  had            presented his constitutional claims to the Maine SJC, thereby            exhausting  state remedies.    421 F.2d  at  1330.   We  also            rejected the  Maine SJC's indication  that the merits  of the            applicant's direct appeal were relevant to a decision whether            the applicant had received ineffective assistance of counsel.            Id.  We therefore  remanded the matter to the  district court            ___            with  instructions to grant the  writ if the  state could not            show  that the applicant's  ineffective assistance of counsel            claim was  without merit and  if the  Maine Supreme  Judicial            Court refused to reinstate the appeal.  Id.                                                    ___                                         -7-                      Petitioner  asserts that,  contrary to  Wilbur, the                                                              ______            district  court here is requiring him to seek state review of            the merits of his lost appeal via Rule 30(b).  We do not read                ______            the  district court's order in this way.  Although Cowie held                                                               _____            that  Rule 30(b)  is  an appropriate  substitute  for a  lost            appeal,  there is no indication that Rule 30(b) is limited to            the consideration of the  merits of the appeal.   Put another            way,  Rule  30(b)   apparently  remains  available  for   the            determination that petitioner received ineffective assistance            of counsel -- the  prerequisite to obtaining state  review of                               ____________            petitioner's appellate  arguments.    We  finally  note  that            although  Wilbur  contemplated  reinstatement of  the  direct                      ______            appeal, Castille now requires the exhaustion of Rule 30(b) in                    ________            this instance.                      The  judgment  of the  district court  is summarily            affirmed.  See Local Rule 27.1.            ________   ___                                         -8-
