Francis Pierce v. State of NH CV-96-065-B 04/17/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Francis Pierce, Jr.

v. Civil No. 96-065-B

State of New Hampshire

MEMORANDUM AND ORDER

Francis Pierce was convicted of aggravated felonious sexual

assault and felonious sexual assault in New Hampshire Superior

Court on August 4, 1993. On February 1 , 1996, Pierce filed a

petition for a Writ of Habeas Corpus in this court asserting that

his conviction was improper because: (1) the prosecutor

improperly withheld exculpatory evidence; (2) trial counsel

improperly failed to give Pierce information that was crucial to

his defense; (3) trial counsel failed to conduct meaningful

investigation and discovery; and (4) trial counsel ineffectively

cross-examined a key witness.

The Magistrate Judge ordered Pierce to amend his habeas

petition because he concluded that Pierce had not exhausted his

state remedies. Pierce subseguently amended his petition and the

Magistrate Judge caused the petition to be served upon the New

Hampshire Attorney General. The State moved to reconsider the Magistrate Judge's decision and the Magistrate Judge subseguently

recommended that Pierce's petition should be dismissed because

Pierce failed to exhaust his state remedies with respect to the

three claims that Pierce failed to include in his appellate

brief. I accepted the Magistrate Judge's ultimate conclusion in

a December 11, 1996 order.

Pierce now seeks a certificate of appealability1 authorizing

him to appeal my order dismissing his petition without prejudice.

Assuming without deciding that an order dismissing a habeas

1 A certificate of appealability may issue only if the petitioner has made a substantial showing of the denial of a constitutional right, and the certificate must indicate which specific issue or issues satisfy the standard.

(c)(2) and (c)(3) (West Supp. 1997). The certificate of appealability replaces the certificate of probable cause previously reguired under the Act. See Antiterrorism and Effective Death Penalty Act of 1996,

(1996). Courts thus far have disagreed about whether the standard for granting a certificate of appealability is different from the certificate of probable cause standard. Compare Lennox v. Evans,

(10th Cir. 1996), cert, denied, 117 S. C t . 746 (1997), and Reves v. Keane,

(2d Cir. 1996) (no change from certificate of probable cause standard established in Barefoot v. Estelle,

(1983)), with Williams v. Calderon,

(9th Cir. 1996) ("The standard for obtaining a certificate of appealability under the Act is more demanding than the standard for obtaining a certificate of probable cause under the law as it existed prior to enactment of the Act."). I need not address this issue because I would decline to issue a certificate of appealability even if its issuance is determined using the certificate of probable cause standard.

2 corpus petition without prejudice for failure to exhaust is a

final appealable order and I that have the authority to issue a

certificate of appealability in the appropriate case,2 I

nevertheless decline to issue the certificate because Pierce has

failed to make a substantial showing that my ruling dismissing

his petition without prejudice would impermissibly interfere with

his constitutional rights.

DISCUSSION

A petitioner can satisfy the exhaustion reguirement by

giving the highest state court a fair opportunity to address his

claim before seeking remedy in federal court. Picard v. Connor,

(1971). Pierce satisfied this reguirement with

respect to his ineffective cross-examination claim because he

raised the issue in his appellate brief. However, he did not

give the supreme court the opportunity to review his other claims

because, although he listed the claims in his notice of appeal,

2 See Hunter v. United States,

(11th Cir. 1996)(en banc), petition for cert, filed,

(U.S. Mar. 10, 1997) (No. 96-1443); United States v. Asrar,

(9th Cir. Mar. 3, 1997); Houchin v. Zavaras,

(10th Cir. 1997); Lyons v. Ohio Adult Parole Auth.,

(6th Cir. 1997), petition for cert, filed,

(U.S. Mar. 14, 1997) (No. 96-1461).

3 he did not include them in his appellate brief. See Store v.

Perin,

(1978) (issues raised only in a notice

of appeal are waived).

A petitioner need not comply with the exhaustion requirement

if it is obvious that he has procedurally defaulted on his state

court claims.3 See Harris v. Reed,

, 263 n.9 (1989)

("[A] federal habeas court need not require that a federal claim

be presented to a state court if it is clear that the state court

would hold the claim procedurally barred.") (emphasis added).

Relyinq on this exception. Pierce contends that he is entitled to

prosecute his petition in federal court because he is

procedurally barred from proceedinq in state court with the three

claims that he declined to brief.

I reject Pierce's procedural default arqument because it is

conceivable that if Pierce returns to state court, the New

3 The exhaustion requirement merely postpones potential federal relief. Procedural default, on the other hand, normally precludes a federal court from addressinq the merits of the claim. However, a federal court can consider procedurally defaulted claims if the petitioner shows cause for the default and resultinq prejudice. See Hall v. DiPaolo,

(1st Cir. 1993); Coleman v. Thompson,

(1991) (procedural default excused by showinq cause and prejudice or a fundamental miscarriaqe of justice that would result from the application of the state rule). Pierce claims his procedural default was "caused by ineffective appellate counsel."

4 Hampshire Supreme Court would recognize an exception to the

general rule that issues raised in a notice of appeal but not

briefed are waived if appellate counsel is ineffective.

Therefore, Pierce's unexhausted claims should be dismissed so

that he can present the claims in state court. See Hull v.

Freeman,

(3d Cir. 1993) ("[W]here a petitioner

has raised a colorable claim for waiver of procedural default

under state law, we should dismiss his habeas petition without

prejudice so that he can assert this claim in state court.").

CONCLUSION

Dismissal without prejudice for failure to exhaust does not

foreclose either state or federal relief. Pierce may convince

the New Hampshire Supreme Court to recognize an exception to its

waiver rule. If not. Pierce can refile his petition in federal

court and his claims can potentially be heard at that time.

Therefore, Pierce cannot demonstrate a "substantial showing of

the denial of a constitutional right."

(c)(2)

(West Supp. 1997). Accordingly, I decline to issue a certificate

of appealability.

5 Pierce may wish to abandon his unexhausted claims so that I

can rule immediately on his sole exhausted claim. However, he

should note that he may lose future opportunities to raise his

unexhausted claims if he chooses this route. See 28 U.S.C.A.

2244 (b)(1) (West Supp. 1997)("a claim presented in a second or

successive habeas corpus application under Section 2254 that was

presented in a prior application shall be dismissed"); see also

McCleskv v. Zant,

(1991) (discussing

successive petitions). I will give Pierce until April 30, 1997

to inform the court whether he desires reinstatement of his

exhausted claim. If Pierce does not make a timely election to

abandon his unexhausted claims, I will dismiss his entire

petition without prejudice.

SO ORDERED.

Paul Barbadoro United States District Judge April 17 , 1997

cc: Francis Pierce, Jr., pro se

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