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
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SELYA, Circuit Judge. 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. See R.I. Gen. Laws § 11-37-

8.3. 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 several social visits at the 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. Each of the prospective witnesses would testify

that, when younger, he had been similarly molested by the

petitioner in the petitioner's abode.
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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
 The petitioner also challenged the jury instructions on an 1

unrelated ground. Coningford, 901 A.2d at 629. That aspect of his

asseverational array is not relevant here.

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detective. The petitioner did not testify, but moved

unsuccessfully for a judgment of acquittal. 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. The state 1

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
 There may be an exception to the exhaustion bar for cases 2

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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federal constitutional claim in state court. The second involves

whether that claim is meritorious. 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). This exhaustion requirement, which 2

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

follows that a petitioner's failure to present his 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).
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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. These include reliance on a specific

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

Cir. 1994). "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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"particular right" guaranteed by the Constitution. We are not

persuaded.

It is common ground that the Constitution guarantees all

persons accused of crime the right to a fair trial. See U.S.

Const. amends. V, VI, XIV. But the petitioner's claim before the

state court bore no indicia of reliance on such a right. To the

contrary, he relied conspicuously and exclusively on state

evidentiary rules, accompanied by generalized plaints about

prejudice and unfairness. "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). We hold, without serious question, that the

petitioner's vague 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 federal constitutional claim by asserting a

functionally identical state-law claim. In advancing 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). See State v.
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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 through the assertion of a functionally

identical state-law claim demands more than mere "[f]amily

resemblances." Nadworny, 872 F.2d at 1100. "[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 violated the Fifth, Sixth, and

Fourteenth Amendments. In the state supreme court, however, he

articulated his claim quite differently; he simply did not present

it in constitutional terms. Rather, he argued in terms of abuse of

discretion. 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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"face-up and squarely," Martens v. Shannon, 836 F.2d 715, 717 (1st

Cir. 1988), it was properly dismissed as unexhausted.

B. The Merits.

The petitioner's 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." 28 U.S.C.

§ 2254(d)(1). 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.
 Evidence of the alleged molestation of the young girl was 3

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.

 Our review does not encompass the petitioner's 4

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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"A state-court decision constitutes an 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. In his view, this misapplication of Rule 3

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
the claim of state-law error only insofar as it is part and parcel

of the overarching constitutional claim.

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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." Lewis v. Jeffers, 497

U.S. 764, 780 (1990). 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 directly to the

admission of prior bad acts evidence. 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
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application of the broader fair-trial principle. 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. This argument reflects a triumph of hope

over reason. 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. 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.