
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2310                                     LUIS ROSADO,                                Plaintiff, Appellant,                                          v.                           CORRECTIONS, ME WARDEN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Timothy S.  Murphy  and Gardner  Gardner  &  Murphy on  brief  for            __________________      ___________________________        appellant.            Andrew Ketterer, Attorney General,  Mary M. Sauer  and Charles  K.            _______________                     _____________      ___________        Leadbetter, Assistant Attorneys General, on brief for appellees.        __________                                 ____________________                                    March 26, 1997                                 ____________________                      Per Curiam.   Petitioner  Luis Rosado has  filed an                      __________            application for a  writ of  habeas corpus under  28 U.S.C.               2254.  In it, he argues  that the Maine statute setting forth            the circumstances under which a juvenile may be prosecuted as            an adult,  see 15  M.R.S.A.    3101(4), violates  due process                       ___            because it directs the juvenile court to use  a preponderance            of the evidence standard in determining when such prosecution            is required; Rosado maintains that  the Constitution mandates            a standard  of clear and  convincing evidence.   The district            court  denied the application for the writ on the merits, but            granted a certificate of probable cause to appeal.                      We treat  this certificate as a recommendation that            we  issue a  certificate  of appealability  ("CAP") under  28            U.S.C.   2253, as amended  by the Antiterrorism and Effective            Death  Penalty Act of 1996.   See 28  U.S.C.   2253(c)(1)(B).                                          ___            We  agree  that  a  substantial  question  is  presented  and            therefore grant Rosado's request for  a CAP.  However,  since            we  believe that  oral argument  would not be  of significant            assistance -- the parties have fully briefed the case and the            issue turns on parsing Supreme Court precedents -- we proceed            directly to the merits.                      Three circuit courts  of appeal have addressed  the            same question  in relation to the  federal transfer provision            contained in the Juvenile Justice and Delinquency  Prevention            Act.    See 18  U.S.C.    5032.    These courts  hold  that a                    ___                                         -2-            preponderance  of  the  evidence  standard is  all  that  due            process requires.  See United States v. I.D.P., 102 F.3d 507,                               ___ _____________    ______            513-14 (11th  Cir. 1996);  United States  v. T.F.F.,  55 F.3d                                       _____________     ______            1118, 1122 (6th  Cir. 1995);  United States v.  Doe, 49  F.3d                                          _____________     ___            859, 868 (2d Cir. 1995).  We agree with the result reached by            these  courts.   Because  the cases  adequately  set out  the            relevant  analysis,  including  reference  to  the  pertinent            Supreme Court cases, we  see no reason to repeat it here, but            we  believe that  a published  opinion by  this court  may be            useful to district courts in this circuit.                      Finally, Rosado  cites a  number of state  cases in            support of his position that due process requires a clear and            convincing evidence  standard.  Examination reveals  that the            courts in these cases either adopted such a standard by court            rule or by  reference to  a state statute  so providing;  the            courts that did  consider due process  claims did not  decide            what minimum standard of proof was required.                 _______                      The judgment of the district court is affirmed.                                                            ________                                         -3-
