Delaney v. Comm'r of Corrections

Full title: PATRICK DELANEY; JOHN BRUDER, Plaintiffs, Appellants, v. COMMISSIONER OF…

Court: United States Court of Appeals, First Circuit

Date published: Dec 9, 1999

No. 98-2190 (1st Cir. Dec. 9, 1999)

Opinion

No. 98-2190.

Entered: December 9, 1999.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Torruella, Chief Judge, Selya and Boudin,Circuit Judges.

JUDGMENT

Patrick Delaney and John Bruder appeal from the dismissal of their complaints--which were purportedly filed pursuant to 42 U.S.C. § 1983 but were treated by the district court as habeas petitions--for failure to exhaust state remedies. Appellees have filed a motion to dismiss the appeal for failure to obtain a certificate of appealability ("COA"). Appellees have also filed a motion to dismiss the appeal as to Delaney on the ground that his recent discharge from the Massachusetts Treatment Center renders his appeal moot. We previously denied these motions without prejudice to later reconsideration.

Upon review of the briefs and record, we are persuaded that the relief sought is unavailable via § 1983, and that the complaints were properly treated as habeas petitions essentially for the reasons stated in the magistrate's report. Moreover, appellants appear to challenge the denial of habeas relief, suggesting that the exhaustion requirement should have been excused on the ground of futility. It follows that a certificate of probable cause ("CPC") is required for this appeal to go forward.¹

1 Because the complaints were filed prior to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Act's COA requirements do not apply. Nevertheless, the pre-AEDPA version of 28 U.S.C. § 2253 requires that a petitioner obtain a CPC before taking an appeal from an order denying habeas relief, and the substantive requirements for a CPC are the same as the requirements for a COA. See Tejeda v. Dubois, 142 P.3d 18, 22 n. 4 (1st Cir. 1938).

Ordinarily, a request for a CPC should be directed to the district court in the first instance. However, under the unusual circumstances presented in this case and as the appeal has been fully briefed, we see no reason to remand to the district court to permit it to rule first. Accordingly, we treat petitioner's notice of appeal and brief as a CPC application.

On that basis, we conclude that a CPC should be denied essentially for the reasons stated by the magistrate in addressing the exhaustion issue. Appellants have failed to make a substantial showing that the exhaustion requirement should have been excused on the ground of futility. In particular, they have failed to identify any case in which the Massachusetts Supreme Judicial Court has squarely addressed and rejected their substantive due process argument, much less any case decided since the United States Supreme Court's decision inKansas v. Hendricks, 117 S. Ct. 2072 (1997). Our conclusion that a CPC should be denied means that this appeal will not go forward. Accordingly, it is unnecessary to address whether we should reconsider our ruling on the issue of mootness.

For the foregoing reasons, the appeal is terminated.

[Cert. Copy Judge Hornby, Magistrate Judge Cohen, and Clerk, US District Court for New Hampshire. Cc: Ms Silsby, Mr. Dilworth, Mr. Terison, Mr. Bushell]