Opinion
Civil Action No. 02-10447-GAO
August 14, 2002
ORDER DENYING CERTIFICATE OF APPEALABILITY
The petitioner was convicted of first degree murder after a jury trial in the Massachusetts Superior Court, but on appeal his conviction was reversed by the Supreme Judicial Court and the case remanded for retrial. In its opinion, the SJC noted for the benefit of the trial judge at a prospective second trial that the petitioner was not entitled to an instruction under the Commonwealth's so-called "castle" law, Mass.Gen. Laws ch. 278, § 8A, which relieves a person of a duty to retreat when attacked within his home. Commonwealth v. Carlino, 710 N.E.2d 967, 971 (Mass. 1999). After a second jury trial, the petitioner was again convicted, and his appeal is pending in the state courts.
Because his state appeal is still pending, I dismissed the habeas petition for failure to exhaust his state court remedies. He seeks a certificate of appealability pursuant to 28 U.S.C. § 2253(c), arguing, as he did in opposition to the respondent's motion to dismiss for failure to exhaust, that the SJC effectively resolved the question at issue in its first opinion, making the ruling effectively the law of the case for the trial court, so that the reasons of comity that underlie the exhaustion rule do not obtain. The argument is far from frivolous, but I concluded that the exhaustion principle requires that the SJC be given an opportunity, in the appeal from the second conviction, to correct any mistake it made in its ruling in the first appeal. Nevertheless, the question is one which reasonable jurists could find debatable and might, for that reason, warrant appellate consideration.
However, when a habeas petition has been dismissed on a procedural ground, a certificate of appealability should issue only if the petitioner shows both that the correctness of the procedural ruling is fairly debatable and that it is debatable whether the petition states a viable claim of the denial of a federal constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the petitioner claims that the SJC improperly interpreted the scope of a state statute. It is not debatable whether his petition states a viable claim of denial of a federal constitutional right; it plainly does not.
Accordingly, the motion for a certificate of appealability is DENIED.