USCA1 Opinion

October 31, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1422

EDWARD DIPIETRO,

Petitioner, Appellant,

v.

WILLIAM COALTER,

Respondent, Appellee.

____________________

ERRATA SHEET

The opinion of

this court issued on

October 23, 1995 is

amen

as follows:

On

cover sheet,

change "[Hon.

Morris E.

Lasker,

U.S. Distr
__________

Judge]" to "[Hon. Morris E. Lasker,* Senior U.S. District Judge].

_____
__________________________

*Senior

U.S.

District

Judge,

of

the

Southern District, sitting by designation."

District

of

New

Yo

October 23, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1422

EDWARD DIPIETRO,

Petitioner, Appellant,

v.

WILLIAM COALTER,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]

___________________

____________________

Before

Selya, Stahl and Lynch,

Circuit Judges.
______________

____________________

William J. Brown, Jr., and

______________________

Marasi, Franco & Brown on

_______________________

brief

appellant.

Scott Harshbarger, Attorney General, Margaret C. Parks, Assist

__________________
_________________

Attorney General, and Gregory I. Massing, Assistant Attorney Gener

___________________
on brief for appellee.

____________________

____________________

Per Curiam.
__________

Petitioner Edward DiPietro, a Massachusetts

inmate, appeals from the dismissal of his habeas

containing both

exhausted and

petition as

unexhausted claims.

For the

following reasons, we vacate and remand.

I.

On December 19, 1989,

Superior Court

in

cocaine

distribute

of eighteen

to serve.

and

it.

to indictments charging him

possession

of

marijuana

He was sentenced on

Approximately two

unsuccessfully

See Commonwealth
___ ____________

with trafficking

with

to

with twelve years

years later, DiPietro

This motion was denied,

appealed to the

intent

March 2, 1990 to a term

to twenty years imprisonment,

motion for new trial.

1993).

DiPietro pled guilty in Middlesex

filed a

and DiPietro

Massachusetts Appeals Court.

v. DiPietro, 624 N.E.2d 587 (Mass. App. Ct.

________

On March 1, 1994,

the Massachusetts Supreme Judicial

Court (SJC) denied DiPietro's application for leave to obtain

further

appellate

review

(ALOFAR).

See
___

Commonwealth v.
____________

DiPietro, 631 N.E.2d 58 (Mass. 1994).

________

DiPietro then

turned to

federal court.

On

April 15,

1995, DiPietro filed a habeas petition under 28 U.S.C.

alleging that

he was denied effective

guaranteed by

the Sixth Amendment because

2254

assistance of counsel

(a) trial counsel

had misrepresented,

motion to

counsel

prior to DiPietro's guilty

suppress evidence had

had misinformed

plea, that a

been filed and

him that pending

denied; (b)

state legislation

would deprive him of "good time" credits if he were convicted

after

January 15, 1990; and

appropriate

pretrial motions

(c) counsel had

and was

failed to file

generally unprepared.

The Commonwealth moved to dismiss the petition

on the ground

that the latter two claims, although raised in the motion for

new trial

not fairly

SJC.

failed

The

and before

the Massachusetts Appeals

presented in

Court, were

DiPietro's ALOFAR submitted

district court concluded that

to the

DiPietro had indeed

to present these two claims adequately to the SJC and

dismissed the petition under Rose v. Lundy, 455 U.S. 509, 510
____
_____

(1982) (holding that a district court must dismiss a petition

which contains any unexhausted claim).

II.

Under 28 U.S.C.

2254, a federal habeas petitioner must

first "exhaust[] the remedies available in

the courts of the

State."

so, the applicant

must

See 28 U.S.C.
___

present

the

2254(b).

highest

state

To do

court

with

opportunity" to confront and correct the alleged error.

"fair

Mele
____

v.

Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988).
_____________________

In

Mele, we mapped the

____

context

contours of this

requirement in the

of prevailing Massachusetts appellate practice.

The

-4-

petitioner in Mele had

____

before the

raised a federal constitutional claim

Massachusetts Appeals

the claim

in his ALOFAR.

cannot be

considered as having been fairly

SJC for

We

Court but did

held that "an

exhaustion purposes unless the

not mention

appealed issue

presented to the

applicant has raised

it within the four corners of the ALOFAR."

Id. at 823.
___

The

least

the

them

instant case

two respects.

claims at

in

reference

his

issue from

arguments

he made

Second, it

ALOFAR,

to

the

rather mentioned

incorporate

his Massachusetts

is undisputed that

SJC requested

from

by

Appeals

after DiPietro

DiPietro,

and

intermediate court briefs and record

DiPietro

fairly presented

ineffective assistance

resolved

in

at

Nonetheless, the district court concluded that the

question whether

third

purported

Mele in
____

not entirely omit

his ALOFAR, but

which

received, a copy of the

appendix.

distinguishable from

First, DiPietro did

footnote

Court brief.

filed

is

without reference

claims in

his second

his ALOFAR

to his intermediate

and

must be

court brief

since no evidence exists that any justice of the SJC actually

referred

to the brief.

The district court further concluded

that these claims were not fairly presented within the ALOFAR

itself.1

____________________

1.

We agree with the district court that DiPietro's footnote

presentation
isolation

of

his

from the

second
Appeals

and third

claims,

Court brief,

viewed

in

is inadequate

to

satisfy exhaustion concerns because

it fails to identify the

factual

claims.

and

legal bases

of these

-5-

See
___

Scarpa v.
______

We think that DiPietro did exhaust

ineffective assistance

we

understand it,

claims.

the

the ALOFAR itself.

App. P. 27(e)).

Under the

decision to

appellate review ordinarily

his second and third

grant

is made solely

Mele, 850 F.2d

____

We have made it

SJC's practice as

or deny

further

on the basis

at 822 (citing

of

Mass. R.

plain that we do not expect

the SJC "to scour the whole of the record below for potential

error beyond

that

applicant."

Id.
___

from

its

called to

Where,

practice and

filed,

these

ALOFAR

did alert

the court's

attention by

as here, however,

requests

papers are

the SJC

properly

to his

to

the SJC departs

see papers

before

the

it.

second and

previously

DiPietro's

third claims,

which

were,

in

turn,

adequately

delineated

intermediate court brief provided to the SJC.

in

his

Cf. Scarpa, 38
___ ______

F.3d at 6 (stating that where petitioner identified a federal

basis for a claim in his motion for new trial,

backdrop against which his later

be viewed).

Under

he provided a

state court filings had

the circumstances, we are persuaded

the SJC had a "fair opportunity" to address these claims.

add that

the Commonwealth, having reconsidered

below, now urges us to find exhaustion.

Vacated and remanded.

_____________________

____________________

See Loc. R. 27.1.

___

to

that

We

its position

Dubois,
______

38 F.3d 1, 6

(1st Cir. 1994),

Ct. 940 (1995).

-6-

cert. denied, 115 S.

____________