Professional Documents
Culture Documents
____________________
No. 95-1422
EDWARD DIPIETRO,
Petitioner, Appellant,
v.
WILLIAM COALTER,
Respondent, Appellee.
____________________
ERRATA SHEET
The opinion of
amen
as follows:
On
cover sheet,
change "[Hon.
Morris E.
Lasker,
U.S. Distr
__________
*Senior
U.S.
District
Judge,
of
the
District
of
New
Yo
____________________
No. 95-1422
EDWARD DIPIETRO,
Petitioner, Appellant,
v.
WILLIAM COALTER,
Respondent, Appellee.
____________________
____________________
Before
____________________
brief
appellant.
____________________
____________________
Per Curiam.
__________
containing both
exhausted and
petition as
unexhausted claims.
For the
I.
Superior Court
in
cocaine
distribute
of eighteen
to serve.
and
it.
possession
of
marijuana
He was sentenced on
Approximately two
unsuccessfully
See Commonwealth
___ ____________
with trafficking
with
to
appealed to the
intent
1993).
filed a
and DiPietro
On March 1, 1994,
further
appellate
review
(ALOFAR).
See
___
Commonwealth v.
____________
DiPietro then
turned to
federal court.
On
April 15,
alleging that
guaranteed by
2254
assistance of counsel
had misrepresented,
motion to
counsel
had misinformed
plea, that a
denied; (b)
state legislation
after
appropriate
pretrial motions
and was
failed to file
generally unprepared.
on the ground
that the latter two claims, although raised in the motion for
new trial
not fairly
SJC.
failed
The
and before
presented in
Court, were
to the
dismissed the petition under Rose v. Lundy, 455 U.S. 509, 510
____
_____
II.
Under 28 U.S.C.
State."
must
See 28 U.S.C.
___
present
the
2254(b).
highest
state
To do
court
with
"fair
Mele
____
v.
Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988).
_____________________
In
context
contours of this
requirement in the
The
-4-
before the
Massachusetts Appeals
the claim
in his ALOFAR.
cannot be
SJC for
We
not mention
appealed issue
presented to the
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
DiPietro
fairly presented
ineffective assistance
resolved
in
at
question whether
third
purported
Mele in
____
which
appendix.
distinguishable from
footnote
Court brief.
filed
is
without reference
claims in
his second
his ALOFAR
to his intermediate
and
must be
court brief
referred
to the brief.
that these claims were not fairly presented within the ALOFAR
itself.1
____________________
1.
presentation
isolation
of
his
from the
second
Appeals
and third
claims,
Court brief,
viewed
in
is inadequate
to
factual
claims.
and
legal bases
of these
-5-
See
___
Scarpa v.
______
ineffective assistance
we
understand it,
claims.
the
App. P. 27(e)).
Under the
decision to
grant
is made solely
We have made it
SJC's practice as
or deny
further
on the basis
at 822 (citing
of
Mass. R.
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
see papers
before
the
it.
second and
previously
DiPietro's
third claims,
which
were,
in
turn,
adequately
delineated
in
his
Cf. Scarpa, 38
___ ______
be viewed).
Under
he provided a
add that
____________________
to
that
We
its position
Dubois,
______
38 F.3d 1, 6
-6-