
USCA1 Opinion

	




          October 31, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 95-1422                                    EDWARD DIPIETRO,                                Petitioner, Appellant,                                          v.                                   WILLIAM COALTER,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET            The opinion of  this court issued on  October 23, 1995 is  amended        as follows:            On  cover sheet,  change "[Hon.  Morris E.  Lasker,  U.S. District                                                                 _____________        Judge]" to "[Hon. Morris E. Lasker,* Senior U.S. District Judge].        _____                                __________________________            *Senior  U.S.  District  Judge,  of  the  District  of  New  York,        Southern District, sitting by designation."        October 23, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1422                                    EDWARD DIPIETRO,                                Petitioner, Appellant,                                          v.                                   WILLIAM COALTER,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Morris E. Lasker, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            William J.  Brown, Jr., and  Marasi, Franco  & Brown on  brief for            ______________________       _______________________        appellant.            Scott  Harshbarger, Attorney General, Margaret C. Parks, Assistant            __________________                    _________________        Attorney General, and Gregory  I. Massing, Assistant Attorney General,                              ___________________        on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Petitioner Edward DiPietro, a Massachusetts                 __________            inmate, appeals from the dismissal of his habeas  petition as            containing both  exhausted and  unexhausted claims.   For the            following reasons, we vacate and remand.                                          I.                 On December 19, 1989,  DiPietro pled guilty in Middlesex            Superior Court  to indictments charging him  with trafficking            in  cocaine  and  possession  of  marijuana  with  intent  to            distribute  it.  He was sentenced on  March 2, 1990 to a term            of eighteen  to twenty years imprisonment,  with twelve years            to serve.   Approximately two  years later, DiPietro  filed a            motion for new trial.   This motion was denied,  and DiPietro            unsuccessfully  appealed to the  Massachusetts Appeals Court.            See Commonwealth  v. DiPietro, 624 N.E.2d 587 (Mass. App. Ct.            ___ ____________     ________            1993).  On March 1, 1994,  the Massachusetts Supreme Judicial            Court (SJC) denied DiPietro's application for leave to obtain            further  appellate  review  (ALOFAR).    See  Commonwealth v.                                                     ___  ____________            DiPietro, 631 N.E.2d 58 (Mass. 1994).              ________                 DiPietro then  turned to  federal court.   On  April 15,            1995, DiPietro filed a habeas petition under 28 U.S.C.   2254            alleging that  he was denied effective  assistance of counsel            guaranteed by  the Sixth Amendment because  (a) trial counsel            had misrepresented,  prior to DiPietro's guilty  plea, that a            motion to  suppress evidence had  been filed and  denied; (b)            counsel  had misinformed  him that pending  state legislation            would deprive him of "good time" credits if he were convicted            after  January 15, 1990; and  (c) counsel had  failed to file            appropriate  pretrial motions  and was  generally unprepared.            The Commonwealth moved to dismiss the petition  on the ground            that the latter two claims, although raised in the motion for            new trial  and before  the Massachusetts Appeals  Court, were            not fairly  presented in  DiPietro's ALOFAR submitted  to the            SJC.  The  district court concluded that  DiPietro had indeed            failed  to present these two claims adequately to the SJC and            dismissed the petition under Rose v. Lundy, 455 U.S. 509, 510                                         ____    _____            (1982) (holding that a district court must dismiss a petition            which contains any unexhausted claim).                                           II.                 Under 28 U.S.C.   2254, a federal habeas petitioner must            first "exhaust[] the remedies available in  the courts of the            State."   See 28 U.S.C.    2254(b).  To do  so, the applicant                      ___            must   present  the   highest  state   court  with   a  "fair            opportunity" to confront and correct the alleged error.  Mele                                                                     ____            v.  Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988).                _____________________            In  Mele, we mapped the  contours of this  requirement in the                ____            context  of prevailing Massachusetts appellate practice.  The                                         -4-            petitioner in Mele had  raised a federal constitutional claim                          ____            before the  Massachusetts Appeals  Court but did  not mention            the claim  in his ALOFAR.   We  held 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 ALOFAR."  Id. at 823.                                                          ___                 The  instant case  is  distinguishable from  Mele in  at                                                              ____            least  two respects.   First, DiPietro did  not entirely omit            the  claims at  issue from  his ALOFAR, but  rather mentioned            them  in  a  footnote   which  purported  to  incorporate  by            reference  arguments  he made  in  his Massachusetts  Appeals            Court brief.   Second, it  is undisputed that  after DiPietro            filed  his  ALOFAR,  the  SJC requested  from  DiPietro,  and            received, a copy of the  intermediate court briefs and record            appendix.  Nonetheless, the district court concluded that the            question whether  DiPietro  fairly presented  his second  and            third  ineffective assistance  claims in  his ALOFAR  must be            resolved  without reference  to his intermediate  court brief            since no evidence exists that any justice of the SJC actually            referred  to the brief.  The district court further concluded            that these claims were not fairly presented within the ALOFAR            itself.1                                              ____________________            1.  We agree with the district court that DiPietro's footnote            presentation  of  his  second  and third  claims,  viewed  in            isolation  from the  Appeals  Court brief,  is inadequate  to            satisfy exhaustion concerns because  it fails to identify the            factual  and  legal bases  of these  claims.   See  Scarpa v.                                                           ___  ______                                         -5-                 We think that DiPietro did exhaust  his second and third            ineffective assistance  claims.  Under the  SJC's practice as            we  understand it,  the  decision to  grant  or deny  further            appellate review ordinarily  is made solely  on the basis  of            the ALOFAR itself.   Mele, 850 F.2d  at 822 (citing  Mass. R.                                 ____            App. P. 27(e)).  We have made it  plain that we do not expect            the SJC "to scour the whole of the record below for potential            error beyond  that  called to  the court's  attention by  the            applicant."   Id.  Where,  as here, however,  the SJC departs                          ___            from  its  practice and  requests  to  see papers  previously            filed,  these  papers are  properly  before  it.   DiPietro's            ALOFAR  did alert  the SJC  to his  second and  third claims,            which   were,  in   turn,   adequately   delineated  in   his            intermediate court brief provided to the SJC.  Cf. Scarpa, 38                                                           ___ ______            F.3d at 6 (stating that where petitioner identified a federal            basis for a claim in his motion for new trial,  he provided a            backdrop against which his later  state court filings had  to            be viewed).  Under  the circumstances, we are persuaded  that            the SJC had a "fair opportunity" to address these claims.  We            add that  the Commonwealth, having reconsidered  its position            below, now urges us to find exhaustion.                 Vacated and remanded.  See Loc. R. 27.1.                 _____________________  ___                                            ____________________            Dubois,  38 F.3d 1, 6  (1st Cir. 1994),  cert. denied, 115 S.            ______                                   ____________            Ct. 940 (1995).                                         -6-
