Coningford v. State of Rhode Island

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [08-2219]

Case: 08-2219 Document: 00116210620 Page: 1

Date Filed: 05/19/2011

Entry ID: 5551770

United States Court of Appeals
For the First Circuit

No. 08-2219
JAMES D. CONINGFORD,
Petitioner, Appellant,
v.
STATE OF RHODE ISLAND,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Donna Jalbert Patalano and Law Office of D.J. Patalano on
brief for appellant.
Aaron L. Weisman, Assistant Attorney General, and Patrick C.
Lynch, Attorney General, on brief for appellee.

May 19, 2011

Case: 08-2219 Document: 00116210620 Page: 2

SELYA, Circuit Judge.

Date Filed: 05/19/2011

Entry ID: 5551770

Petitioner-appellant James D.

Coningford, a state prisoner, appeals from the denial of his
petition

for

habeas

corpus.

He

posits

that

the

improvident

admission of evidence of prior bad acts rendered his state trial
fundamentally unfair. We find his claim to be both unexhausted and
untenable and, accordingly, affirm the denial of habeas relief.
I.

BACKGROUND
We rehearse only those facts necessary to place this

appeal into perspective.

Readers who hunger for more exegetic

detail may consult the thorough opinion in which the Rhode Island
Supreme

Court

affirmed

the

petitioner's

conviction

on

direct

review. See State v. Coningford, 901 A.2d 623, 625-27 (R.I. 2006).
In the underlying case, the state charged the petitioner
with second-degree child molestation.
8.3.

See R.I. Gen. Laws § 11-37-

The charge arose out of his behavior with a young boy, age

seven, who was a friend of his son.

The complainant alleged that,

during

the

several

social

visits

at

petitioner's

home,

the

petitioner touched him inappropriately.
In a pretrial motion, the state asked the trial justice
to allow it to introduce at trial corroborative testimony from two
other young men.
that,

when

Each of the prospective witnesses would testify

younger,

he

had

been

petitioner in the petitioner's abode.

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similarly

molested

by

the

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Entry ID: 5551770

The state's proffer implicated Rhode Island Rule of
Evidence 404(b), which states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that the person acted
in conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake
or accident, or to prove that defendant feared
imminent bodily harm and that the fear was
reasonable.
The petitioner objected, arguing that the proffered evidence did
not fit into any of the exceptions to Rule 404(b)'s general bar for
prior bad acts but, rather, impermissibly tended to portray him as
"a bad man, [who] has a propensity toward sexual offenses and,
therefore, probably committed the offense with which he [was]
charged."

State v. Quattrocchi, 681 A.2d 879, 886 (R.I. 1996).

Relatedly, he argued that the unfairly prejudicial effects of the
evidence overwhelmed any probative value.
The trial justice granted the state's motion.

He ruled

(i) that the prior bad acts were sufficiently similar to the crime
charged to show a scheme, modus operandi, or common plan to molest
young boys in the petitioner's home, and (ii) that the probative
worth of this evidence outweighed any unfairly prejudicial effect.
The evidence was, therefore, admissible under Rule 404(b).
At trial, the state presented the prior bad acts evidence
along with the testimony of the complainant and an investigating

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Case: 08-2219 Document: 00116210620 Page: 4

detective.

The

petitioner

did

Date Filed: 05/19/2011

not

unsuccessfully for a judgment of acquittal.

testify,

Entry ID: 5551770

but

moved

The jury found him

guilty, and the trial justice denied both his renewed motion for
acquittal

and

his

motion

for

new

trial.

The

trial

justice

subsequently imposed a thirty-year sentence (twenty years to serve
and the balance suspended).
The petitioner appealed, challenging the admission of the
prior bad acts testimony under state evidentiary rules.1

The state

supreme court rejected this claim and affirmed the conviction.
Coningford, 901 A.2d at 625.
The petitioner repaired to the federal district court and
sought habeas relief.

See 28 U.S.C. § 2254.

In an artfully

crafted rescript, the district court concluded that the petitioner
had failed to exhaust his federal constitutional claim anent the
prior bad acts evidence and that, in all events, the claim lacked
merit.

Coningford v. Rhode Island, No. 1:07-cv-167 (D.R.I. Aug.

26, 2008) (unpublished).

This timely appeal followed, as to which

we granted a certificate of appealability.
II.

ANALYSIS
As briefed by the parties, this appeal presents two

questions. The first involves whether the petitioner exhausted his

1

The petitioner also challenged the jury instructions on an
unrelated ground. Coningford, 901 A.2d at 629. That aspect of his
asseverational array is not relevant here.
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Date Filed: 05/19/2011

federal constitutional claim in state court.
whether that claim is meritorious.

Entry ID: 5551770

The second involves

Our review of the district

court's disposition of those issues is de novo.

Janosky v. St.

Amand, 594 F.3d 39, 43 (1st Cir. 2010).
A.

Exhaustion.

In federal habeas cases, the starting point is the
traditional

federal

habeas

statute,

as

modified

by

the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214.

The AEDPA instructs that habeas

relief "shall not be granted unless it appears that the applicant
has exhausted the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1)(A).2

This exhaustion requirement, which

codified preexisting law, is born of the principle "that as a
matter of comity, federal courts should not consider a claim in a
habeas corpus petition until after the state courts have had an
opportunity to act."
follows

that

a

Rose v. Lundy, 455 U.S. 509, 515 (1982).

petitioner's

failure

to

present

his

It

federal

constitutional claim to the state courts is ordinarily fatal to the
prosecution of a federal habeas case. Jackson v. Coalter, 337 F.3d
74, 86 (1st Cir. 2003).

2

There may be an exception to the exhaustion bar for cases
involving colorable claims of actual innocence. See, e.g., House
v. Bell, 547 U.S. 518, 522 (2006).
No such claim is presented
here.
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Entry ID: 5551770

To achieve exhaustion, "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 v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997).

Without

suggesting that the enumeration is exclusive, we have identified at
least five ways in which a habeas petitioner may satisfy the "fair
presentment" requirement.
provision

of

the

These include reliance on a specific

Constitution,

substantive

and

conspicuous

presentation of a federal constitutional claim, on-point citation
to

federal

constitutional

precedents,

identification

of

a

particular right specifically guaranteed by the Constitution, and
assertion of a state-law claim that is functionally identical to a
federal constitutional claim.
Cir. 1994).

Scarpa v. DuBois, 38 F.3d 1, 6 (1st

"The appropriate focus . . . centers on the likelihood

that the presentation in state court alerted that tribunal to the
claim's federal quality and approximate contours."

Nadworny v.

Fair, 872 F.2d 1093, 1098 (1st Cir. 1989).
Before the state supreme court, the petitioner cited no
specific constitutional provision, tendered no substantive federal
claim, and relied on no federal constitutional precedent.

He

strives to convince us, however, that by arguing generally that the
wayward introduction of prior bad acts evidence rendered his trial
unfair, he presented the state court with a claim based on a

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Date Filed: 05/19/2011

"particular right" guaranteed by the Constitution.

Entry ID: 5551770

We are not

persuaded.
It is common ground that the Constitution guarantees all
persons accused of crime the right to a fair trial.
Const. amends. V, VI, XIV.

See U.S.

But the petitioner's claim before the

state court bore no indicia of reliance on such a right.
contrary,

he

evidentiary

relied
rules,

conspicuously
accompanied

prejudice and unfairness.

by

and

exclusively

To the
state

plaints

generalized

on

about

"Alleging lack of a fair trial does not

convert every complaint about evidence . . . into a federal due
process claim."

Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir. 1984)

(quotation omitted).
petitioner's

vague

We hold, without serious question, that the
and

unfocused

references

to

fairness

were

insufficient to draw the state court's attention away from the
state-law raiment in which the petitioner cloaked his claim and
instead alert it to a possible federal constitutional claim.
Consequently, he did not achieve exhaustion through this medium.
See Adelson, 131 F.3d at 262-63; Nadworny, 872 F.2d at 1098.
The petitioner contends, in the alternative, that he
exhausted

his

functionally

federal

identical

constitutional
state-law

claim

claim.

In

by

asserting

advancing

a

this

contention, he emphasizes the substantial similarities between
Rhode Island Rule of Evidence 404(b), upon which he relied in his
direct appeal, and Federal Rule of Evidence 404(b).
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See State v.

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Date Filed: 05/19/2011

Entry ID: 5551770

Rodriguez, 996 A.2d 145, 151 n.9 (R.I. 2010) (noting that the
decisional framework for the state and federal evidentiary rules is
roughly the same); State v. Gaspar, 982 A.2d 140, 148 (R.I. 2009)
(similar).
Exhaustion
identical

state-law

resemblances."

through

assertion

demands

claim

the

more

of

than

Nadworny, 872 F.2d at 1100.

a

functionally

mere

"[f]amily

"[F]air presentation

requires that the constitutional analysis necessary to resolve the
ultimate question posed in the habeas petition and in the state
court

proceedings,

respectively,

be

substantially

the

same."

Scarpa, 38 F.3d at 6; see Dutil v. Murphy, 550 F.3d 154, 158 (1st
Cir. 2008).
The petitioner's present claim is that the admission of
the

prior

bad

acts

evidence

Fourteenth Amendments.

violated

the

Fifth,

Sixth,

and

In the state supreme court, however, he

articulated his claim quite differently; he simply did not present
it in constitutional terms.
discretion.

Rather, he argued in terms of abuse of

The fact that he added the conclusory assertion that

the challenged evidence rendered his trial unfair was not enough to
transmogrify his garden-variety claim of evidentiary error into the
functional equivalent of a claim of constitutional magnitude.

See

Barresi v. Maloney, 296 F.3d 48, 51-52 (1st Cir. 2002).
That

ends

this

aspect

of

the

matter.

Because

the

petitioner failed to present his federal claim to the state court
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Date Filed: 05/19/2011

Entry ID: 5551770

"face-up and squarely," Martens v. Shannon, 836 F.2d 715, 717 (1st
Cir. 1988), it was properly dismissed as unexhausted.
B.
The

petitioner's

The Merits.
failure

to

exhaust

is,

in

itself,

sufficient to defeat his habeas petition. See Jackson, 337 F.3d at
86. But where, as here, a habeas petitioner's unexhausted claim is
patently without merit, the AEDPA allows a federal court, in the
interests of judicial economy, to dispose of that claim once and
for all.

See 28 U.S.C. § 2254(b)(2) ("An application for a writ of

habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State."); see also Granberry v. Greer, 481 U.S. 129,
135 (1987) (explaining that a federal habeas court may reach the
merits of an unexhausted claim "if it is perfectly clear that the
applicant does not raise even a colorable federal claim"). This is
such a case.
Federal habeas relief is available if the state court's
adjudication of the petitioner's claim is "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
§ 2254(d)(1).

28 U.S.C.

The petitioner does not contend that the state

court's ruling was contrary to clearly established Supreme Court
precedent.

The pertinent question, then, is whether the state

court indulged in an unreasonable application of federal law.
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"A

state-court

decision

Date Filed: 05/19/2011

constitutes

an

Entry ID: 5551770

unreasonable

application of clearly established federal law if it identifies the
correct rule, but applies that rule unreasonably to the facts of
the case sub judice."

Janosky, 594 F.3d at 47 (citing Williams v.

Taylor, 529 U.S. 362, 407-08 (2000)).

This standard "does not

demand infallibility: a state court's decision may be objectively
reasonable

even

if

the

federal

habeas

court,

exercising

its

independent judgment, would have reached a different conclusion."
Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002).
The petitioner assails the admission of the prior bad
acts evidence.

He argues that no reasonable judge could have

viewed those acts as showing a common plan to molest young boys in
his home because he had also been charged (albeit separately) with
molesting a young girl.3

In his view, this misapplication of Rule

404(b) prejudiced him by leading the jury to believe that he had a
propensity to commit sex-related crimes.

This, in turn, violated

his constitutionally protected right to a fair trial.4

3

Evidence of the alleged molestation of the young girl was
not introduced at the petitioner's trial.
Moreover, if this
argument had any force — which it does not — it would be undercut
by the fact that the petitioner, in a separate proceeding, was
acquitted of that charge.
4

Our
review
does
not
encompass
the
petitioner's
straightforward claim, consistently argued by him, that the trial
justice misapplied Rhode Island Rule of Evidence 404(b). After
all, an error of state law, without more, is not enough to warrant
federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir. 1987). We consider
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Entry ID: 5551770

To be sure, a misbegotten evidentiary ruling that results
in a fundamentally unfair trial may violate due process and, thus,
ground federal habeas relief.

See Montana v. Egelhoff, 518 U.S.

37, 43 (1996); Petrillo v. O'Neill, 428 F.3d 41, 44 n.2 (1st Cir.
2005).

But to trigger such relief, the state court's application

of state law must be "so arbitrary or capricious as to constitute
an independent due process . . . violation."
U.S. 764, 780 (1990).

Lewis v. Jeffers, 497

The Supreme Court has "defined the category

of infractions that violate 'fundamental fairness' very narrowly."
Dowling v. United States, 493 U.S. 342, 352 (1990).

The state

court's decision in the instant case falls well outside these
narrow confines.
To begin, the petitioner does not identify any clearly
established

Supreme

Court

case

law

speaking

admission of prior bad acts evidence.

directly

to

the

Indeed, the Court has

expressly declined to determine "whether a state law would violate
the Due Process Clause if it permitted the use of 'prior crimes'
evidence to show propensity to commit a charged crime." Estelle v.
McGuire, 502 U.S. 62, 75 n.5 (1991).

The absence of an on-point

pronouncement from the Supreme Court leaves hanging by the slimmest
of threads the petitioner's claim that the state court's admission
of the prior bad acts evidence can be deemed an unreasonable

the claim of state-law error only insofar as it is part and parcel
of the overarching constitutional claim.
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Date Filed: 05/19/2011

application of the broader fair-trial principle.

Entry ID: 5551770

See Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
In an effort to shore up his position, the petitioner
argues that we should turn to case law at the circuit level to find
clearly established law.
over reason.

This argument reflects a triumph of hope

The AEDPA "requires that the relevant legal rule be

clearly established in a Supreme Court holding, rather than in
dictum or in holdings of lower federal courts."

Ouber v. Guarino,

293 F.3d 19, 26 (1st Cir. 2002); see Lockyer v. Andrade, 538 U.S.
63, 71 (2003).

While lower court precedents may provide "a

valuable reference point" when there is some doubt about the
meaning or scope of the relevant Supreme Court rule, Rashad, 300
F.3d at 35, they may not be used to fill a gap where, as here, the
Justices have expressly declined to lay down a rule.

See Ouber,

293 F.3d at 26.
Because the Supreme Court has not laid down a governing
rule anent the admission of prior bad acts evidence, the broader
fair-trial principle is the beacon by which we must steer.

We need

not linger long over this point; it is nose-on-the-face plain that
the state court's approval of the introduction of the prior bad
acts evidence in this case, whether or not an unarguably correct
evidentiary ruling, was well within the universe of plausible
evidentiary rulings.

It was, therefore, not so arbitrary or

capricious as to work a denial of the petitioner's constitutionally
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secured fair-trial right.

Date Filed: 05/19/2011

Entry ID: 5551770

Consequently, the claim that the state

court unreasonably applied clearly established federal law is
hopeless.
III.

CONCLUSION
We need go no further. For the reasons elucidated above,

we hold that the district court correctly denied the petition for
habeas relief.

Affirmed.

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