USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1536

LEONARD H. ADELSON,

Petitioner, Appellant,

v.

JAMES V. DIPAOLA,

Respondent, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Kimberly Homan, with

______________

whom Robert L. Sheketoff,

___________________

Homan, Francis J. DiMento, and

_____ __________________

Sheketoff &
___________

DiMento & Sullivan were on brief,

__________________

for appellant.
William J. Meade, Assistant Attorney
_________________

General, Commonwealth

of Massachusetts,

with whom Scott Harshbarger, Attorney General,

_________________

was on brief, for appellee.

_________________________

December 12, 1997

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.

Petitioner-appellant Leonard H.

_____________

Adelson hatched a plan to film bouts between Russian and American

pugilists

and

television

market

stations.

from the opening

the

The

bell.

In

Commonwealth

of

petitioner on

charges of

resultant

videotapes

to

undercapitalized venture

the aftermath

Massachusetts

Russian

was doomed

of its collapse,

successfully

larceny by check.

prosecuted

After

the

the

a fruitless

pursuit of appellate remedies in the state courts, the petitioner

sought habeas

correctional

corpus relief in

official

as

the

a federal forum, naming

respondent.

In

an

ore
___

a state

tenus
_____

decision, the district court dismissed the petition on the ground

that it contained

an unexhausted claim.

We affirm.

I.

The petitioner appeals.

I.
__

The Tale of the Tape

The Tale of the Tape
____________________

Early

Massachusetts,

in

and

Eisner was

lesser

pugilists

garner

Russian

included

Russian boxers, and

he would

petitioner,

Arizona, to promote and

American

responsibilities

the

resident

of

teamed up with Steven Eisner and Lawrence Meyers,

both residents of

between

1993,

boxers.

underwriting the

videotape prizefights

The

petitioner's

project,

supplying

marketing videotapes of the bouts, for which

the lion's

share of

the anticipated

profits.

to receive a monthly salary, reimbursed expenses, and

share

of

the

and handling

profits for

the logistics

recruiting

of

the

the matches.

American

Meyers

agreed to film the fisticuffs in exchange for an up-front payment

of $5,000 and a further

plus

expenses

(e.g.,

payment in approximately the same amount

editing costs),

due

upon

production of

commercially acceptable videotapes of a particular card of bouts.

In April 1993,

$5,000 to Meyers

$2,500 and $7,500,

the petitioner transmitted a

as an initial payment

respectively, to

check for

and sent two checks

Eisner.

All three

for

checks

were

drawn

Company,

payment

on

the

a Massachusetts

for services

with boxing matches

on April

course,

petitioner's

explaining

that

and

rendered or to

were

at

be rendered

The payees negotiated

Cambridge

the

account

petitioner attributed

Trust

Cambridge

intended

scheduled to take place

28, 1993.

however,

bank,

account

effect

in connection

in Laughlin, Nevada

the checks.

returned

lacked

to

Trust

them,

sufficient

In due

unhonored,

funds.

The

the incident to a bank error and persuaded

Eisner and Meyers to go forward with the promotion.

The three men

time, the petitioner

pay

the

balance

Although that

send

met in Laughlin

on April

gave Meyers $3,000 in cash

of his

transfer

a total of $13,000

fee

by

wire transfer

never materialized,

to Eisner in

28.

At

and promised to

the

next day.

the petitioner

mid-May.

that

did

Eisner diverted

$5,000

Despite

from

this sum

the fact

performed the

that

to

Meyers

he had

not

editing work and

to

cover

been paid

editing

expenses.

in full,

delivered a single

Meyers

videotape to

the petitioner in Massachusetts with the hope that the petitioner

could

sell it

Meyers's hopes

market the

and thereby

soon were dashed:

tape in

turned a blind

make

Russia proved

good on

the

the bounced

checks.1

petitioner's efforts

unavailing and he

eye to the insistent demand

to

thereafter

letters forwarded by

his erstwhile partners.

To

Meyers

make a

eventually

called

of

financial

instruments formed the

Trial,

check.

tolerably

the three

attention

larceny by

the

tedious tale

terse, Eisner

dishonored

Massachusetts authorities.

See Mass. Gen.

___

conviction, and

the

apace.2

In

predicate for three

Laws ch.

imposition

The

checks

of

266,

Massachusetts

and

to the

turn, those

counts of

37 (1990).

two-year

Appeals

prison

sentence

followed

Court

affirmed

the conviction, see Commonwealth v. Adelson, 666 N.E.2d

___ ____________
_______

167 (Mass. App. Ct. 1996), and the Massachusetts Supreme Judicial

Court

(SJC)

denied further

appellate review.

670

N.E.2d 966

(Mass. 1996).

Undeterred by his lack of

the

petitioner applied

for habeas corpus

States District Court for the

U.S.C.

whether

decision to

Massachusetts

the United

He posited that

withhold from

courts

relief in

District of Massachusetts.

2254 (1994 & Supp. II 1996).

trial judge's

success in the early rounds,

had subject

the jury the

matter

See 28
___

the state

question

jurisdiction

____________________

1While the exact amount of money that Adelson owed Meyers is

disputed
for

by Meyers's reckoning, the

petitioner owed him $5,955

services rendered after all sums

actually received had been

credited

it is pellucid that Adelson never paid Meyers

for the videotaping services.

in full

2Execution of the sentence has been stayed.

relieved the prosecution

the criminal charges

of

this

of its burden to prove

and thus violated his right

law under the Fourteenth

claim

Massachusetts

of

Amendment.

constitutional

case law deems

error

each element of

to due process

The petitioner bottomed

on

an

assertion

that

jurisdiction a substantive element

of every criminal offense and that the prosecution therefore must

prove its existence beyond a reasonable doubt.

reaching

The

district

court

dismissed

the

merits,

concluding

that

the

petition

Adelson

without

inadequately

presented his putative federal claim in the Massachusetts courts.

Judge

Woodlock

appealability.

did,

however,

See 28 U.S.C.
___

grant

certificate

2253(c); Fed. R. App.

of

P. 22(b).

This appeal ensued.

II.
II.
___

Exhaustion
Exhaustion
__________

In recognition of

the state courts' important

role in

protecting constitutional rights, the exhaustion principle holds,

in

general,

that

federal

court

will

not

entertain

an

application for

habeas relief

fully exhausted his

509,

518-19

jurisdictional bar

conviction, it

pathways of

the application.

Although

to federal

habeas review

disputatious sentry

comity" between

the federal

v. Lundy, 455
_____

exhaustion

of

is

not

a state

[that] patrols

and state

court

the

sovereigns.

872 F.2d 1093, 1096 (1st Cir. 1989).

has

each and every

See Rose
___ ____

(1982).

is "the

Nadworny v. Fair,
________
____

petitioner first

state remedies in respect to

claim contained within

U.S.

unless the

With few

exceptions

have

none

enforced

rigorously.

the

exhaustion

See, e.g.,
___ ____

Shannon, 836
_______

petitioner

of which are applicable here

F.2d 715,

bears a

Rose,
____

718 (1st

heavy

burden

requirement

455

U.S.

to show

at 518;

Martens
_______

Thus, a

that

and

v.

habeas

he fairly

and

the factual and legal

See Picard v. Connor, 404 U.S. 270,

___ ______
______

276-77 (1971); Nadworny, 872 F.2d at 1098.

________

the petitioner

consistently

Cir. 1988).

recognizably presented to the state courts

bases of this federal claim.

federal courts

To carry this burden,

must demonstrate that he tendered

such a way as to make it probable that a reasonable

each claim "in

jurist would

have

been alerted

to

the existence

of the

federal question."

Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).

______
______

Although

there

are

fair presentment

myriad

accomplished.

ways

in

of

which

a claim

that

is obligatory,

phenomenon

can

be

See Nadworny, 872 F.2d at 1097-98 (noting at least

___ ________

five ways in which a habeas petitioner satisfactorily can present

federal claim

inherent

to

state courts).

But the

flexibility

in this multi-channeled approach does not transform the

exhaustion

requirement into

court's calculation of

would have discerned

petitioner's

guesswork.

the

an

empty

formality.

the probability that a

filings is

federal

reasonable jurist

the federal question from a

relevant state-court

not

perusal of the

a matter

Rather, that calculation is informed "by trappings

of

specific

constitutional

appropriate

analogy,

federal

language,

precedent,

argument with no

constitutional

substantive

citation,

constitutional

masking state-law character,

and the

like."

Id.
___

petitioner's

at 1101.

The fewer

the trappings

state-court filings, the

that

adorn a

less likely that

we will

find his federal claim to have been exhausted.

Although these general principles provide

guidance, our

de novo

dismissal

of

necessarily

appellate review

habeas

petition

case-specific.

for

of

want

a modicum of

a district

of

See id. at 1095.

___ ___

court's

exhaustion

is

We turn, then, to

the particulars of the case at hand.

In

such

the district

as Schad v.
_____

court, the

Arizona, 501 U.S.

_______

petitioner, citing

624, 638 (1991),

cases

and In re
_____

Winship, 397 U.S. 358, 364 (1970), articulated his constitutional

_______

claim in the following terms:

jurisdiction as a

(2)

due process

(1) Massachusetts case law defines

substantive element of all

requires

the

prosecution

criminal offenses;

to

prove

all

the

substantive elements of an offense beyond a reasonable doubt; (3)

and

therefore, in a Massachusetts criminal case, the prosecution

must prove jurisdiction

beyond a reasonable doubt.3

syllogism,

the petitioner posited

preemption

of

refusal to

instruct the jury

the

that the state

jurisdictional

its due-process-imposed

issue

and

to

prove

all

trial judge's

his

on it relieved the

burden

Given this

concomitant

prosecution of

the

substantive

____________________

3We take

no view

Massachusetts law.
not made

We

jurisdiction a

check offense, then the

of the

petitioner's characterization

note, however, that if Massachusetts

substantive element

review would not

Estelle v. McGuire, 502 U.S.

_______
_______
497 U.S. 764,

federal, law.

has

larceny by

petitioner's claim would appear

on alleged errors of state, not

then federal habeas

of the

of

to turn

If this were

be available to him.

so,

See
___

62, 67-68 (1991); Lewis v. Jeffers,

_____
_______

780-81 (1990); Puleio v. Vose, 830 F.2d 1197, 1204

______
____

(1st Cir. 1987).

elements of the charged crimes.

and

one

that

clearly states

This is an intriguing argument,

federal

constitutional claim.

Whether the claim would have merit is, however, a different issue

and one which, absent exhaustion, we need not decide.

The fly in the

this argument to the

ointment is that Adelson never

Massachusetts courts.

that the argument is completely

In

his brief

to

the

pitched

This is not to

say

alien to the state court record.

Massachusetts Appeals

Court

and in

his

unsuccessful application to the SJC for further appellate review,

the petitioner set forth the factual underpinnings of his federal

claim.

But setting forth the factual underpinnings of a claim is

insufficient, in and of itself, to constitute fair presentment of

that claim.

A habeas

petitioner must also elucidate

foundation of his federal claim.

Gagne v. Fair, 835

_____
____

F.2d 6, 7

the legal

See Nadworny, 872 F.2d at 1096;

___ ________

(1st Cir. 1987).

It is on

these

shoals that the petitioner's quest founders.

Exhaustion obligations mandate that a habeas petitioner

present, or

do his

best to

state's highest tribunal.

present, his

federal claim to

the

See United States ex rel. Kennedy v.

___ ______________________________

Tyler, 269 U.S. 13, 17 (1925); Mele v. Fitchburg Dist. Court, 850
_____
____
_____________________

F.2d

817,

820 (1st

Cir.

1988).

Accordingly,

the

decisive

pleading is the application for further appellate

review, and we

must

presented

determine

federal

whether

claim to

application.

petitioner

the

Mele,
____

argued to

the

SJC

850

petitioner

within "the

F.2d

at

the SJC,

as he

fairly

four

823.

did to

corners" of

In

this case,

the

that

the

the Massachusetts

Appeals Court, that the Commonwealth's evidence could not support

criminal jurisdiction

have

submitted the

neither

premised

grounds nor

Amendment,

process.

arguments

provided any

federal

trial judge at

jurisdictional issue

these

process pathway to

cited no

and that the

on

cases,

and eschewed

made

no

but he

constitutional

pointed

toward a

due

conviction.

The

petitioner

mention

the

Fourteenth

all references

He instead relied

jury

federal

signposts that

reversal of his

to the

least should

of

to the

concept of

due

only upon Massachusetts case law and

debated the assignment of error exclusively in state-law terms.

Under

petitioner

these

circumstances,

exhausted his

due process

course, that deployment of federal

we

cannot say

claim.

It

that

is true,

authority sometimes is not

prerequisite to adequate presentation

of a federal claim to

the

of

the

state

courts.

See Scarpa,
___ ______

occasions will be

38 F.3d

at 7.

few and far between, and

Nevertheless, such

they invariably will

involve some suitable surrogate for explicit reference to federal

authorities, say, an

the petitioner's

that

emphasis on federal

cited state cases

adopts or parallels

Lanigan v.
_______

Ponte,
_____

F.2d 199,

Harless, 459 U.S.

_______

201

(1st

state law

Cir.

1984); cf.
___

See
___

Dougan v.
______

Anderson
________

v.

state-court decision predicated solely

law ordinarily will

reviewing court of

44 (1st Cir. 1988);

in

4, 7 n.3 (1982) (per curiam) ("We doubt that a

defendant's citation to a

on state

or an analysis of

federal constitutional analysis.

Maloney, 853 F.2d 40,

_______

727

due process rights

be sufficient to fairly

a potential federal claim

apprise a

merely because the

defendant in the cited case advanced a federal claim.") (emphasis

_____

in original).

Indeed,

in

No such

his

surrogate dwells in the

application for

further

present record.

appellate

review the

petitioner did not even attempt to analogize his state-law claims

of error to a due process

to alert even

violation.

This is simply not

the most perspicacious of jurists

enough

to the embedded

constitutional claim.

In a

See Nadworny, 872 F.2d at 1101.

___ ________

desperate effort

supposed presentation of

to overcome

the fact

his federal claim to

that any

the Massachusetts

courts is masked, or, more accurately, completely camouflaged, by

a dense state-law overlay, the petitioner maintains that

of

the

phrase "proof

beyond

a reasonable

doubt"

his use

conjured up

constitutional visions perceptible to any reasonable jurist, and,

thus, saves the day.

claim

previously asserted

conspicuous

hypothetical

federal

without

emblemata

`mainstream' of

oxymoronic quality."

have

We do not agree.

held, and

today

"Rhetoric arguing that a

federal

nonetheless

constitutional

Id. at 1098.
___

reaffirm, that

citation

fell

other

within

litigation has

Consequently, we

the

or

some

an

regularly

mere incantation

of

constitutional

buzzwords,

constitutional analysis, does

demonstrating

835 F.2d at

unaccompanied

8; Dougan, 727 F.2d

______

raise

a constitutional eyebrow,

once,

in passing,

a federal claim.

at 201.

"proof beyond a

in

any

federal

not suffice to carry the burden of

fair presentment of

extent that the

by

In all

See Gagne,
___ _____

events, to the

reasonable doubt" mantra

the petitioner invoked

his brief

10

to

the Massachusetts

might

it only

Appeals

Court, and not at all in his application to the SJC.

warned

before,

haystack of the

"scatter[ing]

state court record"

claim of exhaustion.

The lack

there

some

makeshift

As we have

needles

is not enough

in

the

to ground

Martens, 836 F.2d at 717.

_______

of fair presentment

are occasional

exceptions

to the

ends the matter.

While

exhaustion requirement

(say, where exhaustion plainly would be futile or where the state

has waived the requirement), the petitioner does not, and cannot,

argue that any apply in this instance.

On the other hand, while

the Antiterrorism and

Effective Death Penalty Act

L.

Stat. 1214

No. 104-132,

110

(1996) (codified

of 1996, Pub.

in scattered

sections

of

conferring

habeas

28

U.S.C.),

changes

merits, notwithstanding the

the applicant to exhaust the

the State," 28

petitioner's

habeas

law

by

upon federal courts express authorization to "den[y a

petition] on the

case is an

preexisting

U.S.C.

failure of

remedies available in the courts of

2254(b)(2),

we do

not think that

this

appropriate candidate for the use of such power.

federal

claim

flows

interpretation of Massachusetts law.

procedurally

barred

Massachusetts courts

we believe that

from

from

apparently

his

claim

III.
III.
____

to

the

which we express no opinion

those tribunals are better situated

petitioner's state-law hypothesis.

novel

Assuming that he is not now

presenting

a matter on

an

The

to test the

See Gagne, 835 F.2d at 10.

___ _____

Conclusion
Conclusion
__________

We need go

no further.

Habeas

counsel often confront

11

an inhospitable legal

by

the intricacies

landscape, and the problem

of

the exhaustion

is complicated

requirement.

however, apply that requirement impartially.

We

must,

Here, only the most

intrepid judicial spelunker could have picked a

path through the

petitioner's state-law-strewn grotto and excavated a buried claim

of constitutional error.

his

federal claim

to

Because the

the

petitioner did not present

Massachusetts

courts

"face-up

and

squarely," Martens, 836 F.2d at

_______

717, the district court properly

dismissed his

without prejudice,

exhaustion.

Affirmed.
Affirmed.
________

habeas petition,

for want

of

12