Clements v. Maloney, No. 05-2411. Starting the week off early, the First Circuit starts talking about whether a habeas petitioner properly exhausted a claim under Massachusetts state law. In doing so, it acknowledges that a prior holding may be invalid. In this case, “An eyewitness identified Clements as the killer while testifying before the grand jury, but recanted that testimony at trial.” He raised nine claims before the mid-level appellate court. He petitioned the Massachusetts SJC to review three of them (this is called an “Application for Leave to Obtain Further Appellate Review or ALOFAR). They granted review on one (sufficiency of the evidence), and ultimately affirmed noting that the recanted testimony wasn’t the only evidence of guilt.
At the District Court, he raises six claims. Three of them were found in the ALOFAR. Two were only raised at the mid-level appellate court. One wasn’t raised anywhere. The District Court found all but one either not exhausted or purely state law: a jury hold-out claim. A stay to exhaust was denied because the District Court held that his decisions were “deliberate” and “tactical.” The petitioner maintains that the “state law “ claims really had some basis in Federal Law. The First affirms this denial, even though Rhines v. Weber, 544 U.S. 269 (2005), was decided later, saying that there wasn’t “good cause” for failing to exhaust that claim.
In the end, “The district court issued a provisional decision, allowing Clements to decide whether to proceed in federal court on his single exhausted claim (by voluntarily dismissing the other, unexhausted claims) or to dismiss his whole petition and return to state court.” After an extension of time, the petitioner elected not to dismiss anything, as he though that Rhines v. Weber, 544 U.S. 269 (2005) required a stay.
Regarding the two claims that were in the ALOFAR, that the District Court found to be purely state law, the Court explains that in its prior precedent in Barresi v. Maloney 296 F.3d 48, 52 (1st Cir. 2002), “the exhaustion analysis should include a review of "backdrop" materials, such as the Appeals Court brief, wherein he says that the federal nature of his claim was made clear.” In this case, the First holds that because there was no ambiguity in the state nature of these claims there was no need to go to “backdrop” material. But, the First hints at another issue: Baldwin v. Reese might apply in cases where there was some ambiguity.
The petitioner also argues that since Massachusetts Rule of Appellate Procedure ("MRAP") 27.1 permits him to rely on the brief that he filed with the Massachusetts Appeals Court to demonstrate the exhaustion of his claim, the entire lower court brief was before the Massachusetts Supreme Judicial Court. The First rejects this, saying “the formal transfer of the Appeals Court record to the SJC does not require the SJC to review briefing or other materials relating to issues beyond the one(s) for which review was granted.”
But, the other side of the coin of this argument is that looking at an older version of MRAP 27.1, the First concludes that as to the issues that the Massachusetts Supreme Judicial Court granted review on, the First must look at everything they had before them by virtue of the rule, which, in this case is the “ALOFAR, the "supplemental" brief to the SJC, and the relevant portion of the Appeals Court brief.” The First then notes that although a single cite to a SCOTUS opinion isn’t enough, Baldwin says that the “labeling” of a claim is enough to implicate a federal interest. In this case, the claim was labeled, “The Court violated Clement's rights pursuant to the Sixth and Fourteenth Amendments as well as Article XII of the Massachusetts Declaration of Rights, when it held at trial and on the motion for a new trial that the jury could consider Willis' grand jury identification as substantive evidence of Clement's [sic] guilt.” So, the First decides that this is exhausted.
The claims not presented in the ALOFAR were considered unexhausted.
And, therefore, “Therefore, we remand the petition to the district court, where Clements should be given the opportunity to dismiss his unexhausted claims... If Clements declines to dismiss his unexhausted claims, the district court should dismiss the entire petition without prejudice.”
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