Fusi v. O'Brien , 621 F.3d 1 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-1060
ALFRED P. FUSI,
Petitioner, Appellant,
v.
STEVEN O’BRIEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel J. Gorton, U.S. District Judge]
Before
Boudin, Selya, and Gajarsa,*
Circuit Judges.
Bernard Grossberg for appellant.
Jessica V. Barnett, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief, for appellee.
September ##, 2010
*
Of the Federal Circuit, sitting by designation.
GAJARSA, Circuit Judge. Petitioner Alfred Fusi (“Fusi”)
appeals from the United States District Court for the District of
Massachusetts’ denial of his petition for a writ of habeas corpus
and request for an evidentiary hearing. See Fusi v. O’Brien,
588 F. Supp. 2d 158 (D. Mass. 2008). In his habeas petition, Fusi
alleged that he was denied his Sixth Amendment right to effective
assistance of counsel because his trial counsel failed to prepare
for trial. Because Fusi failed to exhaust his ineffective
assistance of counsel claim in state court, the district court
should have dismissed his petition without prejudice.
I.
On February 17, 1984, Fusi was convicted in Essex County
Superior Court of rape in violation of chapter 265, section 22B of
Massachusetts General Laws. Fusi was sentenced to a prison term of
fifteen to twenty years. Fusi’s sentence was to begin after he
finished serving time for a previous conviction.
The district court cogently and aptly described the
circumstances surrounding Fusi’s conviction and the performance of
his initial trial counsel, Richard Chambers, as follows:
Fusi's prosecution arose out of an incident that occurred
on the evening of September 11, 1981. The alleged rape
victim in the case described how she had gone out to two
bars and consumed five drinks during the evening. At
about 2:00 a.m., the victim had an argument with her
boyfriend and decided to take a walk. While walking, she
passed a man (18 to 20 years old) who said “Hi” as she
passed him. When she said “Hi” in response, he hit her
in the jaw, knocking her temporarily unconscious. She
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regained consciousness in a backyard where her assailant
was kneeling on top of her, illuminated from some light
source. She screamed but the man told her he would kill
her if she did not stop screaming and stuffed a bandana
into her mouth. He proceeded to rape her and then
immediately left the area.
The victim walked out to a road where after a short time,
she saw a friend driving by. The friend stopped and took
her to the police station. Although the victim reported
the assault, she did not make a written statement about
the rape at that time because she felt “out of it” and
wanted to go to the hospital to obtain treatment for her
jaw.
The following day, the victim leafed through a local high
school yearbook to try to give her friends an idea of
what her assailant looked like. She did not notice that
Fusi's photograph appeared in the yearbook four times.
Six days later, the victim returned to the police station
where the police arrayed seven photographs of men
matching her description of the assailant. In less than
one minute, she picked out Fusi as “the man that raped
me”. [sic] She also positively identified him after
looking at the photographs a second time. At that time
the victim provided the police with a six-page written
statement describing the rape. Approximately one month
later, the victim returned to the police station again
and picked Fusi out from a nine-man line-up in less than
one minute. The victim also positively identified Fusi
as her rapist at his trial.
The strategy Atty. Chambers chose to adopt at Fusi's
trial was one of mis-identification and alibi. To that
end, he cross-examined the Commonwealth's witnesses,
including the victim at length, focusing on the victim's
lack of opportunity to see her assailant and on
discrepancies in her description of him as compared with
his actual appearance, such as 1) her failure to describe
a birth-mark Fusi bears on his cheek, 2) her description
of him as olive-skinned and Italian-looking (whereas he
was very pale-skinned) and 3) her statement that the
assailant weighed considerably less than Fusi actually
weighed.
Atty. Chambers called several witnesses to testify about
Fusi's appearance. He also called Fusi's girlfriend of
six years and a friend of Fusi's to testify that on the
evening in question they were “hanging out” at Fusi's
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home. Fusi's girlfriend testified that Fusi drove her
home about 1:30 a.m. Fusi's mother testified that she was
still awake when Fusi returned home about half an hour
later. She also testified that she went to bed around
2:20 a.m. and did not hear anyone leave the house for the
rest of the night. At the conclusion of the trial, the
judge, addressing Atty. Chambers, stated, “I appreciate
you worked hard”. [sic] Atty. Chambers did not, however,
become aware of or cross-examine the victim with respect
to her six-page, written statement describing the rape
even though that statement was available for use at trial
and was inconsistent with the victim's testimony in
several ways.
Fusi, 588 F. Supp. 2d at 160-61.
At the conclusion of the initial trial, an Essex County
jury found Fusi guilty of rape and his conviction was subsequently
affirmed by the state appellate courts. Fusi then filed his first
motion for post-conviction relief on April 18, 1984. Fusi’s motion
alleged that the jury improperly considered his failure to testify
at trial as evidence of guilt. Atty. Chambers represented Fusi
during this first motion. The motion was denied after a non-
evidentiary hearing.
Fusi, with the assistance of new counsel, then filed a
second motion for post-conviction relief on December 12, 1985.
Fusi’s new counsel argued that Fusi was entitled to a new trial on
several grounds, including ineffective assistance of counsel.
Specifically, Fusi alleged that Atty. Chambers provided ineffective
assistance of counsel by, inter alia, failing to interview and call
prospective witnesses. An evidentiary hearing was held and the
motion was denied. Fusi appealed, but narrowed his allegations of
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error and no longer argued that Atty. Chambers provided ineffective
assistance of counsel. The Massachusetts Appeals Court
subsequently affirmed the trial court’s denial. See Commonwealth
v. Fusi, 517 N.E. 2d 1303(1988) (Table). Fusi appealed to the
Supreme Judicial Court (“SJC”), which denied leave to purse further
appellate review. See Commonwealth v. Fusi, 519 N.E.2d 1348
(1988) (Table).
Fusi then filed a third motion for post-conviction
relief on June 1, 1989. The third motion argued that the grand
jury process had been impaired and that Atty. Chambers’ failure to
object to the grand jury process constituted ineffective assistance
of counsel. Following a non-evidentiary hearing, the trial court
denied the motion. Fusi appealed and his appeal was denied by the
Massachusetts Appeals Court and the SJC. See Commonwealth v. Fusi,
553 N.E.2d 560 (1990) (Table); Commonwealth v. Fusi, 554 N.E.2d
1214 (1990) (Table).
Fusi’s fourth motion for post-conviction relief was filed
on November 17, 1995. In the fourth motion, Fusi again alleged
that Atty. Chambers provided ineffective assistance of counsel,
this time due to his failure to object to alleged sentencing
errors. After a non-evidentiary hearing, the trial court denied
Fusi’s request for a new trial, but ordered a new sentencing
hearing due to Atty. Chambers’ failure to adequately represent Fusi
during sentencing. Following the new sentencing hearing, the trial
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court reimposed the original sentence. Fusi appealed, but the
appeal was dismissed for failure to prosecute.
On March 3, 2003, Fusi filed his fifth motion for post-
conviction relief asserting several grounds, including ineffective
assistance of counsel. With his motion, Fusi provided the trial
court with an affidavit from now-disbarred Atty. Chambers in which
Atty. Chambers admitted that (1) he received Fusi’s case two days
prior to trial and (2) he visited the crime scene, but never spoke
with Leonard and Cathleen Bartolo, whose backyard was the crime
scene and who Fusi stated would contradict some of the victim’s
testimony concerning the light in the Bartolos’s backyard and
whether she screamed on the night of the rape. Relying on Atty.
Chambers’ affidavit and affidavits from his mother and sister, Fusi
argued that he was deprived of his Sixth Amendment right to the
effective assistance of counsel because Atty. Chambers did not
adequately prepare for trial.
The trial court denied Fusi’s motion. Fusi appealed to
the Massachusetts Appeals Court, which found no “manifest
injustice” and affirmed the trial court’s ruling. Fusi v.
Commonwealth, 854 N.E.2d 1266, *1-2 (2006) (Table). The SJC
subsequently denied Fusi’s Application for Leave to Obtain Further
Appellate Review (“ALOFAR”). Commonwealth v. Fusi, 857 N.E.2d
1094 (2006) (Table).
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Fusi continued his quest for a constitutional remedy by
filing a habeas petition in federal district court. To support his
habeas petition, Fusi requested an evidentiary hearing. In the
motion for an evidentiary hearing, Fusi argued that because Atty.
Chambers completely failed to prepare for trial a presumption of
prejudicial ineffective assistance of counsel was warranted.
After hearing oral arguments on the motion, the district
court issued an order denying both the request for an evidentiary
hearing and the habeas petition. Fusi, 588 F. Supp. 2d at 165-66.
The district court implicitly denied Fusi’s request for a
presumption of prejudice and held that Fusi’s allegations, even if
accepted as true, created at best a “close call” on the issue of
prejudice. Id. The district court then held that Fusi’s
allegations “do not overcome the deference afforded by [the
Antiterrorism and Effective Death Penalty Act] to the state courts’
determination that he failed to establish prejudicial ineffective
assistance of counsel.” Id. at 166. Accordingly, Fusi was not
entitled to either an evidentiary hearing or a writ of habeas
corpus. Id.
In response, Fusi applied for a Certificate of
Appealability. In the application, Fusi, relying primarily on the
Sixth Circuit’s decision in Mitchell v. Mason, 325 F.3d 723
(6th Cir. 2003), again asserted that he was entitled to a
presumption of prejudicial ineffective assistance of counsel
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because of Atty. Chambers’ alleged failure to prepare for trial.
The district court granted the Certificate of Appealability, Fusi
v. O’Brien, 626 F. Supp. 2d 135 (D. Mass. 2009), and this appeal
followed.
II.
The critical issue on appeal is whether Fusi fully
exhausted his ineffective assistance of counsel claim in state
court. In order to promote principles of comity and federalism, “a
federal court will not entertain an application for habeas relief
unless the petitioner first has fully exhausted his state remedies
in respect to each and every claim contained within the
application.” Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir.
1997). The doctrine of exhaustion traces its origins to the 19th
century, Ex parte Royall, 117 U.S. 241, 251 (1886), and was
codified by Congress in 1948, 62 Stat. 967.
The Supreme Court has explicated that “[t]he exhaustion
doctrine is principally designed to protect the state courts’ role
in the enforcement of federal law and prevent disruption of state
judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982).
Given their co-equal status in our federal structure, the doctrine
ensures that state courts are afforded an adequate opportunity to
adjudicate constitutional claims properly within their
jurisdiction. See Darr v. Burford, 339 U.S. 200, 204 (1950). The
doctrine also finds support in a “pragmatic recognition that
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‘federal claims that have been fully exhausted in state courts will
more often be accompanied by a complete factual record to aid the
federal courts in their review.’” Castille v. Peoples, 489 U.S.
346, 349 (1989) (quoting Rose, 455 U.S. at 519).
In the First Circuit, “a habeas petitioner bears a heavy
burden to show that he fairly and recognizably presented to the
state courts the factual and legal bases of [his] federal claim.”
Adelson, 131 F.3d at 261 (alterations added); Scarpa v. Dubois, 38
F.3d 1, 6 (1st Cir. 1994). The petitioner’s ALOFAR is the
“decisive pleading” and the federal claim must be presented to the
state’s highest court within the four corners of the ALOFAR.
Adelson, 131 F.3d at 263; Mele v. Fitchburg Dist. Court, 850 F.2d
817, 823 (1st Cir. 1988). Earlier state court filings, however,
provide a “backdrop” against which the ALOFAR can be read if it is
ambiguous. See Clements v. Maloney, 485 F.3d 158, 163-64 (1st Cir.
2007).
Before the district court, Fusi argued that he was
entitled to a writ of habeas corpus because he was denied the
effective assistance of counsel in violation of the Sixth
Amendment. In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court established the standard test for determining whether
a defendant’s Sixth Amendment right to counsel was violated. Under
the Strickland test, a defendant must demonstrate that “counsel’s
representation fell below an objective standard of reasonableness”
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and “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 688, 694. On the same day that Strickland was
issued, the Supreme Court issued United States v. Cronic,
466 U.S. 648 (1984), another case concerning the scope of the Sixth
Amendment’s right to counsel. In Cronic, the Supreme Court held
that there are “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified.” Id. at 658. In these limited circumstances,
prejudice is presumed “without inquiry into counsel’s actual
performance at trial.” Id. at 662.
While both Cronic and Strickland concern Sixth Amendment
violations, they are distinct legal claims and the difference
between the two “is not of degree but of kind.” Bell v. Cone,
535 U.S. 685, 697 (2002). Strickland requires a case-by-case
analysis of whether counsel’s deficiencies affected the outcome of
a trial, while Cronic permits a presumption of prejudice if an
actual or constructive denial of counsel occurs during a critical
stage of the trial. These claims, while based on similar factual
underpinnings, are separate and distinct. A defendant’s reliance
on one theory in state court does not exhaust the other. See
Huntley v. McGrath, 261 F. App’x. 4, 6 (9th Cir. 2007) (finding
Cronic claim unexhausted when defendant only raised Strickland
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claim in state courts); Higgins v. Cain, No. 09-2330, 2010 WL
1855870, *6-7 (E.D. La. Feb. 8, 2010) (same).
In his habeas petition, Fusi argued that a Cronic
presumption of prejudice was warranted because Atty. Chambers’
failure to prepare adequately for trial effectively denied Fusi any
counsel during the critical, pre-trial stage of the criminal
proceeding. See Cronic, 466 U.S. at 659 (identifying the “complete
denial of counsel” as a circumstance warranting the presumption of
prejudice). For support, Fusi relied primarily on Mitchell v.
Mason, a case in which the Sixth Circuit held that an attorney’s
complete failure to prepare for trial should be analyzed under
Cronic, not Strickland. See Mitchell, 325 F.3d at 748.
The relevant question on appeal is whether Fusi presented
to the SJC his argument that Cronic, not Strickland, applies to his
claim of ineffective assistance of counsel. A close examination of
Fusi’s ALOFAR reveals not a single citation to Cronic or the Sixth
Circuit’s decision in Mitchell v. Mason. Instead, the ALOFAR
relies exclusively upon the standard two-prong Strickland test,
specifically citing that Supreme Court case five times. Instead of
arguing for a presumption of prejudice, the ALOFAR argues at length
that Atty. Chambers’ deficient assistance caused actual prejudice.
At no point does the ALOFAR argue or even imply that Fusi was
entitled to a presumption of prejudice. Accordingly, the “decisive
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pleading” in this appeal establishes that Fusi did not raise his
Cronic claim in state court.
Moreover, Fusi’s previous state court filings also did
not raise his Cronic claim. In his brief to the Massachusetts
Appeals Court, Fusi relied exclusively on Strickland’s two-prong
test. Indeed, the brief specifically mentions Strickland’s
prejudice prong and argues that Atty. Chambers caused actual
prejudice. Additionally, in his initial brief to the trial court,
Fusi again relied exclusively on Strickland, quoted the case at
length throughout the brief, and argued that Atty. Chambers caused
actual prejudice. While we find no ambiguity in the ALOFAR, to the
extent any did exist, the backdrop against which we read the ALOFAR
bolsters our conclusion that Fusi did not raise his Cronic claim in
state court.
At most, Fusi’s state court filings establish the factual
predicate for his Cronic claim, “[b]ut 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 the legal foundation of his federal claim.”
Adelson, 131 F.3d at 262. Fusi failed to elucidate any legal
foundation for his Cronic claim in state court.
For the foregoing reasons, Fusi failed to exhaust fully
his Cronic claim before the state court. Thus, the district court
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should have dismissed his petition for a writ of habeas corpus
without prejudice.
III.
Fusi’s failure to rely upon Cronic in state court is
fatal to his habeas petition. Had Fusi exhausted his claim,
however, he would still face a rocky slope on his constitutionally
premised appeal given this circuit’s hesitance to apply Cronic’s
presumption of prejudice to situations of “bad lawyering.” See,
e.g., United States v. Theodore, 468 F.3d 52, 56-58 (1st Cir.
2006); Scarpa, 38 F.3d at 13. This circuit has made clear that
“seldom [do] circumstances arise that justify a court in presuming
prejudice (and, concomitantly, in forgoing particularized inquiry
into whether a denial of counsel undermined the reliability of a
judgment).” Ellis v. United States, 313 F.3d 636, 643 (1st Cir.
2002). With respect to an incompetent attorney, the attorney’s
incompetence must rise to the level of a complete denial of
counsel; “bad lawyering, regardless of how bad” is insufficient.
Scarpa, 38 F.3d at 13 (quoting McInerney v. Puckett, 919 F.2d 350,
352-53 (5th Cir. 1990)).
Supreme Court precedent dictates our narrow application
of the Cronic presumption of prejudice. In Cronic, the Court
identified three specific circumstances that warranted the
presumption. See 466 U.S. at 659-662. The first and “most
obvious” is a “complete denial of counsel . . . at a critical
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stage.” Id. at 659. The second occurs “if counsel entirely fails
to subject the prosecution’s case to meaningful adversarial
testing.” Id. And, the third occurs when the circumstances are
such that “even a fully competent [attorney], could [not] provide
effective assistance of counsel.” Id. at 659-60. Circumstances
falling into the third category include the appointment of counsel
“so close upon trial as to amount to a denial of effective and
substantial aid.” Id. at 660 (quoting Powell v. Alabama, 287 U.S.
45, 53 (1932)).
Turning to the merits of Cronic’s petition, the Court
held that the circumstances surrounding his conviction did not
warrant a presumption of prejudice. Id. at 666. The Court refused
to presume prejudice despite the fact that the charged offense was
a complicated mail fraud scheme and the defense attorney was
appointed twenty-five days prior to trial, had no criminal law
experience, and never tried a jury case before. Id. According to
the Court, these facts “are relevant to an evaluation of a lawyer’s
effectiveness in a particular case, but neither separately nor in
combination do they provide a basis for” presuming prejudice. Id.
at 663.
Since issuing Cronic, the Supreme Court has consistently
declined invitations to interpret the case expansively. In Bell v.
Cone, the defense attorney, during sentencing in a capital case,
established that the defendant was a war veteran who received the
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Bronze Star and potentially suffered from Vietnam Veterans
Syndrome. See 535 U.S. at 691-92. The defense attorney also
successfully objected to the introduction of the victims’
photographs, but “he did not interview witnesses aside from those
relevant to the guilt phase; he did not present testimony relevant
to mitigation from the witnesses who were available; and he made no
plea for [the defendant’s] life or closing remarks after the
State’s.” Id. at 708 (Stevens, J., dissenting). Despite these
failings, the Court held that the defendant was not entitled to a
presumption of prejudice because the attorney did not entirely fail
to subject the prosecution’s case to adversarial testing. See id.
at 697 (majority op.).
Two years later, in Florida v. Nixon, 543 U.S. 175, 178
(2004), the Supreme Court again refused to presume prejudice. This
time the defense counsel conceded the defendant’s guilt during
trial without the defendant’s express consent. In holding that
such conduct did not warrant a presumption of prejudice, the Court
described Cronic as a “narrow exception” to Strickland that should
be applied “infrequently.” Id. at 190.
Following the Supreme Court’s instructions, this circuit
has been reluctant to apply Cronic broadly. Importantly, we have
not presumed prejudice in situations strikingly similar to the one
before us today. For example, in Scarpa, we considered whether to
apply the Cronic presumption to a situation where the defense
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attorney did not attempt to impeach government witnesses,
effectively conceded the disputed elements of the charged crimes,
and whose closing argument solicited the jury to accept the
government’s testimony. 38 F.3d at 9-11. We described the defense
attorney’s legal theory as “half-baked” and his blunders as “not
only fail[ing] to assist in fashioning a defense but also
cement[ing] the prosecution’s theory of the case.” Id. at 10-11.
We therefore concluded that the defense attorney’s conduct fell
below an objective standard of reasonableness. Id. at 11.
We did not, however, hold that defense counsel’s
ineptitude warranted a presumption of prejudice. Instead, we
recognized that Cronic is a narrow exception to Strickland’s rule
and should only apply to conduct “so antithetic to effective
assistance . . . that a case-by-case analysis simply is not worth
the cost of protracted litigation.” Id. at 12. We also explained
that “attorney error, even when egregious, will almost always
require analysis under Strickland’s prejudice prong.” Id. at 14.
“Put bluntly, because [defense counsel’s] errors are more an
example of maladroit performance than of non-performance,
Strickland necessitates an inquiry into the existence of actual
prejudice.” Id. at 15.
More recently, in Theodore we were asked to apply the
Cronic presumption to trial counsel’s incompetent pre-trial
investigation. In Theodore, we recognized that trial counsel’s
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pre-trial investigation was “incomplete.” 468 F.3d at 55. While
trial counsel reviewed some documents, he wholly ignored several CD
ROMs that contained all of the government’s evidence. Id. Trial
counsel also failed to interview any witnesses beyond the defendant
and openly stated that he planed “to play it by ear and shoot from
the hip.” Id.
Despite trial counsel’s woefully inadequate preparation,
we refused to presume prejudice because while the “representation
of [the defendant] suffered significant shortcomings, it was not
tantamount to non-representation.” Id. at 57. Trial counsel
reviewed boxes of documents, requested copies of relevant documents
from the government, filed pretrial motions, and exercised several
peremptory challenges. Id. at 57. During trial, counsel cross-
examined government witnesses, suggested defense themes, and
introduced exhibits. Id. at 57. This conduct, while still below
an objective level of reasonableness, “was not so deficient that
[the defendant] should have been relieved from demonstrating
prejudice under Strickland.” Id. at 57-58.
Like the attorneys in Scarpa and Theodore, Atty.
Chambers’ performance may have fallen below an objective standard
of reasonableness, but was not of the character as to constitute
constructive denial of counsel “justify[ing] a presumption that
[the defendant’s] conviction was insufficiently reliable to satisfy
the Constitution.” Cronic, 466 U.S. at 662. In the affidavit that
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Fusi submitted with his habeas petition, Atty. Chambers stated that
prior to trial he reviewed the Commonwealth’s discovery file, the
indictment, the grand jury minutes, and the police report.
Atty. Chambers also stated that he interviewed Fusi’s sister and
mother prior to trial, interviewed Fusi on the day of trial, and
visited the crime scene. Although Atty. Chambers received the case
only two days prior to trial and admitted he would be “shooting
from the hip,” he provided Fusi with some, albeit limited,
representation thereby precluding a presumption of prejudice under
Cronic. Fusi may have retained a bad lawyer; he was not, however,
denied counsel.
We take no view as to whether Mitchell v. Mason was
correctly decided. We do note, however, that the Sixth Circuit
opinion does not dissuade us from our present conclusion. In
Mitchell, the defense counsel in a capital case met with the
defendant for only six minutes spread over three meetings prior to
trial, failed to contact or interview known material witnesses,
ignored the defendant’s repeated requests for consultation, and was
suspended from the practice of law for the thirty days preceding
trial. Id. at 744-47. The Sixth Circuit concluded that the
defense counsel was “utterly absent” during the pre-trial stages of
the criminal proceeding and held that Cronic, rather than
Strickland, should apply to the defendant’s ineffective assistance
of counsel claim. Id. at 748.
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In this case, unlike in Mitchell, there is evidence that
Atty. Chambers performed something more than a minim of work during
the pre-trial phase. As noted above, he reviewed the
Commonwealth’s evidence, the indictment, the grand jury minutes,
and the police report; he visited the crime scene; he met with
Fusi’s sister and mother; and he met with Fusi on the day of trial.
These facts distinguish this case from Mitchell in which the
defense attorney did nothing prior to trial and was not licensed to
practice law the entire month preceding trial. Unfortunately for
Fusi, he was not denied counsel, either constructively or
otherwise. The Constitution requires representation of counsel,
but it does not mandate representation by the equal of Clarence
Darrow.
Accordingly, had Fusi exhausted his Cronic claim in the
state courts, his claim would fail on its merits.
IV.
For the foregoing reasons, we VACATE and REMAND with
instructions to dismiss Fusi’s petition for a writ of habeas corpus
without prejudice. Each party to bear their own costs.
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