Opinion
Civil Action No. 03-11638-DPW.
August 26, 2004
MEMORANDUM AND ORDER
Respondent has filed a motion to dismiss this petition for a writ of habeas corpus brought by Alphonso Cowell, an inmate at the Massachusetts Correctional Institution at Concord. Respondent contends that petitioner Cowell has failed to exhaust the available state remedies as to four claims raised in his habeas petition. I find that Cowell has not exhausted his state remedies with respect to (a) ground two (styled a failure of the prosecution to disclose favorable evidence) and (b) ground seven (styled a modification of evidence at trial). However, because Cowell has stated he wishes to drop from his petition these claims if they are found unexhausted, see Petitioner's Objection at 62-63, I will deny respondent's motion to dismiss and direct respondent to brief the exhausted claims on the merits.
I. BACKGROUND
A lengthy description of the factual setting for the state criminal case underlying Cowell's petition is unnecessary for purposes of this Memorandum. Briefly stated, Cowell was prosecuted with possession and distribution of heroin after he was arrested and the vehicle he was driving was searched.
On March 11, 1999 a grand jury indicted Cowell on five counts: two of possession of heroin with intent to distribute, second or subsequent offense; two of committing the violations within a school zone; and one of conspiracy to possess heroin with intent to distribute. Finding ambiguity as to which crimes were covered by these counts, the trial judge dismissed all but the conspiracy indictment without prejudice on September 30, 1999, citingCommonwealth v. Barbosa, 421 Mass. 547 (1995).
The Commonwealth re-presented testimony to a new grand jury, and on October 20, 1999, the grand jury returned two indictments charging Cowell with possession of heroin with intent to distribute, second or subsequent offense.
On January 26, 2000, Cowell filed a motion to suppress evidence seized by police during the motor vehicle stop. After an evidentiary hearing, on March 16, 2000, the trial judge denied the motion.
Cowell proceeded to trial pro se on June 20, 2000, with appointed stand-by counsel present. On June 22, 2000, the jury convicted Cowell of heroin possession with intent to distribute. Cowell filed a motion to stay the proceedings and a motion for reconsideration in the Massachusetts Supreme Judicial Court ("SJC"). Both were dismissed by a single justice on September 19, 2000. Cowell appealed the denial to the full bench, which subsequently dismissed the appeal on November 28, 2000 for not being properly before the court.
Cowell represented himself again at the second trial on October 2, 2000, again with stand-by counsel present, on the second or subsequent offense count. Prior to trial, Cowell objected to proceeding, claiming the indictment was defective. The judge treated his objection as a motion to dismiss the indictment and denied the motion. On October 3, 2000, the jury returned a guilty verdict on the second or subsequent offense. The judge sentenced Cowell to a term of five years.
On October 12, 2000, Cowell, through stand-by counsel, filed a timely notice of appeal. The Massachusetts Appeals Court affirmed Cowell's conviction on March 31, 2003.
Before the Massachusetts Appeals Court had issued its ruling, on May 7, 2001, Cowell filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. His petition raised a variety of grounds for relief, including a false and perjured police report, invalid indictment based on false evidence, illegal trial based on false evidence, failure to provide suppression hearing, ineffective assistance of counsel, and denial of due process. Judge Lasker, on a motion by respondent, dismissed Cowell's habeas petition for failure to exhaust state court remedies on September 14, 2001. Cowell unsuccessfully sought a certificate of appealability in this court and in the Court of Appeals for the First Circuit. Cowell then sought a writ of certiorari in the Supreme Court, which was denied on May 5, 2003.
On May 22, 2003, Cowell returned to the state courts to exhaust his claims. He filed an Application for Leave to Obtain Further Appellate Review ("ALOFAR") in the SJC. His ALOFAR raised the following grounds:
(1) the arrest report is fatally defective because it lacked reasonable suspicion or probable cause; (2) the police intrusion into the interior of the car was unjustified; (3) waiver of suppression motion; (4) all evidence presented to grand jury is false — Salmon issue; (5) Barbosa issue; (6) the SJC erred in refusing to reverse the conviction for nondisclosure of confidential informant; (7) the evidence presented at the second grand jury was false and perjured (motion to dismiss indictment); (8) false trial evidence; and (9) ineffective assistance of counsel.
On July 23, 2003, the SJC denied the ALOFAR.
Cowell filed the present petition for a writ of habeas corpus on August 11, 2003, under 28 U.S.C. § 2254. Cowell set forth eight grounds for relief:
Even though this is Cowell's second petition, I do not deem it a "second of successive petition" under 28 U.S.C. § 2244(b)(2) which requires approval by the Court of Appeals to file because his first petition was dismissed on exhaustion grounds. Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) ("[N]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition.").
Cowell's filing was well within the applicable one-year statute of limitations. Under 28 U.S.C. § 2244(d)(1)(A), the limitations period begins "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." The SJC denied Cowell's ALOFAR on July 23, 2003. Although Cowell did not choose to seek review by the Supreme Court, the judgment did not become final for purposes of § 2244 until ninety days after the denial of further appellate review. See Neverson v. Farquharson, 366 F.3d 32, 36 (1st Cir. 2004) ("conviction became final when the ninety-day period for seeking certiorari expired"). Thus the judgment became final around October 21, 2003, and Cowell filed his petition within one year of that date.
(1) The conviction was obtained pursuant to an unlawful arrest.
(2) Conviction was obtained by the unconstitutional failure of prosecution to disclose to the defendant evidence favorable to the defendant.
(3) Conviction was obtained by violation of the protection against double jeopardy, collateral estoppel, res judicata.
(4) Conviction was obtained by the use at trial of false, perjured, and inaccurate testimony.
(5) Conviction was obtained by the use of confidential informant information and the failure of the prosecution to disclose to the defendant the identity of the informant as is required by the Constitution and case law.
(6) Conviction was obtained by the Commonwealth's impairment of the grand jury process on 3/11/99 and on 10/20/99, by the unconstitutional presentment of false and perjured evidence.
(7) The conviction was obtained by the Commonwealth's unconstitutional modification of evidence at trial.
(8) Denial of effective assistance of counsel.
On November 10, 2003, respondent moved to dismiss Cowell's petition on the ground that it is "mixed" — that is, it contains both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (federal courts must dismiss "mixed" habeas petitions). Respondent claims that Cowell has failed to exhaust his available state remedies with respect to grounds one, two, three, and seven of his petition.
II. DISCUSSION
The exhaustion requirement, found in 28 U.S.C. § 2254, provides in relevant part:
(b) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State;
. . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
A federal court may consider questions posed in a habeas petition only after the "power of the highest state court in respect of such questions" has been exhausted. Mele v. Fitchburg Dist. Court, 805 F.2d 817, 819 (1st Cir. 1988). The exhaustion principle ensures that state courts have the first opportunity to correct their own constitutional errors, Ducksworth v. Serrano, 454 U.S. 1, 2 (1981), and promotes comity by "minimiz[ing] friction between our federal and state systems of justice."Rose, 455 U.S. at 1203.
A habeas corpus petitioner satisfies the exhaustion requirement if he has fairly presented, or has done his best to present, thesubstance of all his claims to the highest state court. Picard v. Connor, 404 U.S. 270, 278 (1971) (emphasis added). This requirement "is not satisfied if a petitioner presents new legal theories or new factual allegations in federal court that transform his claim or cast it in a significantly different light." Domaingue v. Butterworth, 641 F.2d 8, 12 (1st Cir. 1980); see, e.g., Turner v. Fair, 617 F.2d 7, 11 (1st Cir. 1980); Salemme v. Ristaino, 587 F.2d 81, 86 (1st Cir. 1978); Needel v. Scafati, 412 F.2d 761, 766 (1st Cir. 1969). However, the petitioner is "not precluded from some reformulation of the claims [he] made in the state courts." Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir. 1982). So long as the petitioner demonstrates that he tendered each claim "in such a way as to make it probable that a reasonable jurist would have been alerted the existence of the federal question," Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994), the demands of exhaustion have been met.
For exhaustion purposes in Massachusetts, the decisive pleading is the ALOFAR, and an issue cannot be considered to have been fairly presented to the SJC unless the petitioner has raised it within "the four corners" of that application. Mele, 850 F.2d at 823. Raising the issue to the Massachusetts Appeals Court is not enough: the SJC is not obligated to look beneath the surface of the ALOFAR to the state court record for issues to reconsider; instead, the petitioner bears the burden of identifying the grounds "face up and squarely" for the SJC. Id. at 822 ("A court, unaided by the parties, ought not be expected `to ferret out . . . evanescent needle[s] from . . . outsized paper haystack[s].'") (quoting Rivera-Gomez v. Adolfo de Castro, 843 F.2d 631, 635 (1st Cir. 1988)).
B. Exhaustion of Ground One: "Unlawful Arrest"
Reading his pro se ALOFAR liberally, I find Cowell adequately presented the substance of ground one to the SJC. Admittedly, Cowell uses different language to frame the issue here than he did in his state court appeals. In his ALOFAR, Cowell summarized ground one as, "The Arrest Report is Fatally Defective Because It Lack [sic] Reasonable Suspicion or Probable Cause to Stop the Defendant. . . ." In the present habeas petition, Cowell titles ground one as: "Conviction was obtained pursuant to an unlawful arrest." But the difference in labeling is immaterial because, looking past these headings, thesubstance of both claims remains essentially the same. In both the ALOFAR and the habeas petition, Cowell argues that the clerk-magistrate's post-arrest determination of probable cause was improperly based on an arrest report that contained false, perjured, and uncorroborated information. He relies on similar, detailed factual allegations to support this argument in both applications. Cowell even refers to his arrest as "illegal" throughout. A "reasonable jurist" would certainly have been alerted to Cowell's "unlawful arrest" argument, understanding that a defective arrest report and faulty probable cause determination can lead to an arrest being found "unlawful." Thus, while Cowell has titled the issue differently, the substantive argument in ground one here is the same as in ground one of his ALOFAR. Accordingly, I find that Cowell has exhausted ground one.
As a pro se petitioner, Cowell should not be held to standards equivalent to those binding an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (indicating that courts should read pro se pleadings less strictly than pleadings drafted by lawyers).
C. Ground Two: Failure to Disclose Favorable Evidence
Ground two of the petition, labeled as failure to disclose favorable evidence, is a bit of a misnomer. The facts and arguments supporting this claim read more as a theme and variation on Cowell's contention that the probable cause finding was based on false, perjured, and uncorroborated evidence and testimony. Cowell makes no legally cognizable argument of a failure to disclose favorable evidence and, in any event, did not present any variant of that argument in his ALOFAR or in any of the state appellate proceedings. To the degree that he attempts to set forth a failure to disclose evidence claim (as opposed to a claim redundant of ground one) Cowell has failed to exhaust this claim.
Cowell has argued at every stage of this case that the identity of the confidential informant should have been revealed to him, but he makes this claim separately in ground five of his petition. I understand that by "favorable evidence" here, he refers to other facts which he contends should have been disclosed. This formulation was never presented to the state courts.
D. Ground Seven: Modification of Evidence at Trial
Ground seven, modification of evidence at trial, was presented to the Massachusetts Appeals Court. Particularly, in his appellate brief, Cowell argued that the trial court improperly permitted the Commonwealth to amend the second offense language in the indictment and that the evidence presented at trial was materially different from that alleged in the indictment. Cowell attempts to raise a similar variance claim here.
Presentation to the Appeals Court alone, however, does not sufficiently apprise the SJC of a claim: the petitioner must in the ALOFAR focus the SJC's attention on the contested issues.See Mele, 850 F.2d at 821. "Unless the [application] purports to question a ruling below, the Supreme Judicial Court has little reason to suspect the presence of an issue ripe for consideration." Burbank v. Maloney, 47 F. Supp. 2d 159, 162 (D. Mass. 1999). Cowell's ALOFAR was bereft of any reference to the variance or modification of evidence argument: thus, he failed to re-raise either the improper amendment or materially different evidence issues that he presented to the Appeals Court. From the face of the ALOFAR, it appears that Cowell abandoned these claims altogether, focusing instead on his probable cause arguments. Because Cowell gave no hint of these issues in his ALOFAR, the SJC cannot be held to have fairly been presented with them. Consequently, I conclude Cowell has not exhausted ground seven.
In his ALOFAR, Cowell paralleled the general structure of the Appeals Court's decision — and, in fact, used many of the same section headings. Thus, Cowell's decision to omit in his ALOFAR the entire section entitled "Second or subsequent offense," in which the Appeals Court discussed the variance issue, indicates a deliberate decision on his part to forgo the issue.
E. Ground Three: Double Jeopardy, Res Judicata, and Collateral Estoppel
Cowell similarly presented ground three, double jeopardy, to the Massachusetts Appeals Court, arguing that dismissal of his first indictment on Barbosa grounds should have barred a subsequent reindictment and trial. The Appeals Court disposed of this claim as lacking merit, finding that because dismissal onBarbosa grounds is not a trial or a substantive review of the evidence, reindictment is permissible. In its memorandum, the court titled this claim as the "Barbosa issue."
In his ALOFAR, Cowell also labeled one of his claims as the "Barbosa issue." But the discussion that follows this heading is a convoluted argument about the lack of probable cause to arrest, concluding that "[t]hereby, the Barbosa issue was not properly before the Court where the evidence should not have been used at all." This argument did little to alert the SJC to the existence of a federal issue and failed to present the claim "face-up and squarely" in the four corners of the ALOFAR.
However, while the First Circuit typically focuses the exhaustion inquiry within the "four corners" of the ALOFAR, it has acknowledged that, under certain circumstances, "the pleadings and filings submitted by a habeas petitioner to lower state courts (e.g. . . . a brief submitted to an intermediate appellate court) provide a `backdrop against which his later filings [can] be viewed.'" Barresi v. Maloney, 296 F.3d 48, 52 (1st Cir. 2002) (quoting Scarpa, 38 F.3d at 7). Thus, under both Barresi and Scarpa, where "it cannot be said that the petitioner abandoned his or her federal claims on appeal to the SJC, federal exhaustion review includes consideration of the petitioner's lower court filings as a `backdrop' to his or her ALOFAR." Barresi, 296 F.3d at 52 n. 1.
Here, I cannot say definitively that Cowell abandoned his double jeopardy claim in presenting his case to the SJC, especially in light of his earlier filings. Following his indictment in 1999, Cowell filed a motion for reconsideration to dismiss in the trial court based on double jeopardy, alleging the reindictment was improper. He developed this argument in further detail in his brief in the Appeals Court, and his use of the Appeals Court's heading, "Barbosa issue," indicates that he attempted to raise it again in his ALOFAR. While a "reasonable jurist" might not have fully understood or recognized the argument Cowell made under the "Barbosa issue" heading in his ALOFAR, I find that the ALOFAR sufficiently alerted the SJC that he was pursuing the claim raised in the Appeals Court. As the First Circuit has stated, the relevant focus is whether the claim presented adequate "trappings — specific constitutional language, constitutional citation, appropriate federal precedent, substantive constitutional analogy, argument with no masking state-law character, and the like — such as would in all likelihood alert a reasonable jurist to the existence of the federal question." Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir. 1989). I find that Cowell's reference to the "Barbosa issue" adequately indicated to the SJC that he was pressing the same issue he raised in the Appeals Court, addressed in the Appeals Court's memorandum under the same heading. See Fortini v. Murphy, 257 F.3d 39, 45 (1st Cir. 2001) (sufficient "trappings" given section title and first case citation in section).
As noted earlier, Cowell followed the same organization of issues used in the Appeals Courts' memorandum. While the omission of certain issues indicates his waiver of them for further review, see supra note 6, his decision to include the other issues indicates that he intended to reraise those same issues in his ALOFAR, especially where he used the exact same heading (which he did not do throughout).
Moreover, identifying the issue in the appellate record would not have been a needle-in-a-haystack search for new issues to consider. The "Barbosa issue" is easily located in the Appeals Court's memorandum and the appellate briefs. These discussions of re-indictments and subsequent trials in the context of theBarbosa dismissal surely implicate double jeopardy principles, apprising (albeit minimally) the SJC of the constitutional claim. While Cowell certainly could have more clearly framed this double jeopardy claim in his ALOFAR, I nonetheless find the SJC was given an opportunity to address it for exhaustion purposes.
F. "Mixed" Petition
Because grounds two and seven are unexhausted, Cowell's petition is a "mixed" one consisting of both exhausted and unexhausted claims. Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir. 2004). Although Rose directs courts to dismiss mixed petitions for failure to exhaust, the First Circuit has stated that a stay, rather than a dismissal, is appropriate for mixed habeas petitions whenever "a dismissal threatens to imperil the timeliness of a collateral attack." Id. at 126. Once stayed, the petitioner has the option of amending the petition to drop the unexhausted claims and obtain immediate review or returning to state court to exhaust the unexhausted claims. Id. at 79-80; see also Nowaczyk v. Warden, 299 F.3d 69, 76 (1st Cir. 2002).
Because the Supreme Court held in Duncan v. Walker, 533 U.S. 167 (2001), that the 28 U.S.C. § 2244(d)(1)(A)limitations period is not tolled during the pendency of federal postconviction proceeding, id. at 181-82, a dismissal in most cases will imperil the timeliness of a subsequent petition given the ordinary amount of time a case would pend in federal court prior to dismissal for failure to exhaust. See Neverson, 366 F.3d at 42.
Here, however, Cowell has indicated in his response brief that he wishes to amend his petition to delete grounds two and seven, if they are determined unexhausted. See Petitioner's Objection at 62-63. Rule 15 governs amendments in this case, and requires leave of the court to amend a petition. Such leave shall be "freely given when justice so requires," Fed.R.Civ.P. 15, and accordingly, I will allow Cowell's amendment deleting his unexhausted claims. Because his petition is no longer "mixed," a stay is unnecessary and the petition may proceed to consideration on the merits.
Although Cowell is a pro se litigant, he seems well schooled in habeas petitions and I read his explicit request to drop only particular claims if found unexhausted as an express waiver of the opportunity to ask for a stay of federal proceedings to allow him to return to state court to exhaust those grounds.
Because a habeas proceeding is civil in nature, the Federal Rules of Civil Procedure apply. See Browser v. Director, 434 U.S. 257, 269. Further, Rule 11, 28 U.S.C. fol. § 2254, specifically provides that "The Federal Rule of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules."
In his response to respondent's motion, Petitioner seeks to amend his original petition to include "the Barbosa issue."See Pet'r Objection, page 4, ¶ 5. But it is unclear precisely what Cowell is referring to by "the Barbosa issue" because he provides no further explanation in his response brief. In the context of his ALOFAR, I have concluded that he was arguing that his reindictment allegedly violated principles of double jeopardy. There is consequently no need for an amendment re-alleging this ground.
III. CONCLUSION
For the foregoing reasons, I DENY respondent's motion to dismiss Cowell's petition for failure to exhaust state remedies and direct respondent to brief and file a dispositive motion on the merits of all grounds in this petition except for grounds two and seven which are withdrawn from the petition in accordance with petitioner's request that he be permitted to abandon any claims this court finds to be unexhausted.