United States Court of Appeals

For the First Circuit

No. 05-2411

JASON CLEMENTS,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Singal,* District Judge. 

Rosemary Curran Scapicchio for appellant.

Randall E. Ravitz, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief for appellee.

April 30, 2007

___________________

* Of the District of Maine, sitting by designation.
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LIPEZ, Circuit Judge. This case, involving the

exhaustion requirement for habeas petitioners, requires us to

examine some particulars of Massachusetts appellate procedure.

Although we note the possibility that a portion of one of our prior

decisions, Barresi v. Maloney, 296 F.3d 48 (1st Cir. 2002), might

no longer be valid in light of the Supreme Court's decision in

Baldwin v. Reese, 541 U.S. 27 (2004), we need not decide that

question here. We conclude that the habeas petitioner in this case

succeeded in exhausting one claim, which the district court found

unexhausted, because of the then-existing Massachusetts Rules of

Appellate Procedure. We also find, however, that another claim was

properly deemed unexhausted by the district court because the state

rules do not reach as far as the petitioner has suggested. We

therefore affirm in part, reverse in part and remand as to one

claim.

I.

A. State Court Proceedings

Because the specific facts of the crime underlying this

case are not particularly relevant, we recount them only briefly,

with the rebuttable presumption that factual findings by the state

courts are correct. See 28 U.S.C. § 2254(e)(1). A more complete

recitation of the facts can be found in the Massachusetts Supreme

Judicial Court's ("SJC") opinion, Commonwealth v. Clements, 763

N.E.2d 55 (Mass. 2002).
 The nine legal claims presented to the Appeals Court were 1

described in some detail by the district court. See Clements v.

Maloney, 359 F. Supp. 2d 2, 5 (D. Mass. 2005). They are also

summarized, of course, in the decision issued by the Appeals Court.

See Commonwealth v. Clements, 747 N.E.2d 682, 685 (Mass. App. Ct.

2001).

 Those claims appeared in the ALOFAR as follows: 2

(A) Whether the Appeals Court's decision holding that

inconsistent, recanted extrajudicial statements of

identification constituting the sole evidence of guilt is

sufficient to convict pursuant to Commonwealth v. Daye,

393 Mass. 55 (1984)? [the "sufficiency claim"]

(B) Whether the jury's special verdict, finding the

defendant guilty as a joint venturer but not as the

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Clements was convicted of murdering Gregory Tillery in

1995. Tillery was shot on a street corner by a man wearing a

hooded sweatshirt. An eyewitness identified Clements as the killer

while testifying before the grand jury, but recanted that testimony

at trial. The remainder of the evidence presented by the

government was circumstantial. Clements was convicted on charges

of murder in the second degree by joint venture, armed assault with

intent to murder, and unlicensed possession of a gun. A codefendant was acquitted.

Clements was given a life sentence, and he immediately

appealed his convictions. His motion for a new trial was denied,

and he appealed that decision as well. Clements made nine separate

legal arguments to the Appeals Court, but his conviction was

affirmed. Thereafter, he filed an Application for Leave to Obtain 1

Further Appellate Review (ALOFAR) with the SJC, raising only three

legal claims.2
princip[al] of the crime of second degree murder was

supported by sufficient evidence to convict? [the "joint

venture claim"]

(C) Whether the Appeals Court failed to address Clements'

claim that instructions to deliberating jurors to ignore

the opinion of the lone holdout invaded the province of

the jury and violated Clements' right to a fair trial

pursuant to the Sixth and Fourteenth Amendments to the

United States Constitution as well as Article XII of the

Massachusetts Declaration of Rights? [the "jury hold-out

claim"]

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The SJC granted further appellate review, limited to the

sufficiency claim, and affirmed the conviction. The SJC held that

the recanted testimony was not the sole evidence of guilt, as

Clements claimed, and that there was sufficient evidence to support

the verdict. Clements' argument in support of this claim, both in

his ALOFAR and his supplemental brief to the SJC, relied

exclusively on state law.

B. Federal Court Proceedings

After the SJC rejected his direct appeal, Clements filed

this habeas petition in the district court raising six legal

claims. Three of them were the ones included in the ALOFAR. Two

of the other three had been argued to the state Appeals Court. One

had not previously been raised in any court. In response to the

state's motion to dismiss, Clements argued that he had fully

exhausted his state remedies on all six claims and that, if some

claims were found unexhausted, he should be granted a stay in

federal court so that he could return to state court to exhaust his

remaining claims without fear of exceeding AEDPA's one-year statute
 The habeas petition combined the jury hold-out claim with 3

another related issue, which had not been included in the ALOFAR,

as part of a single "claim." Thus, one of the six habeas claims

comprises two separate arguments, one of which was found exhausted

by the district court (the hold-out claim) and one of which was not

(a claim that the trial court should have ordered a mistrial after

the jury twice announced it was deadlocked). The exhaustion of the

jury hold-out claim is not disputed in this appeal.

 The district court broke some of the habeas claims down into 4

sub-claims; while the habeas petition listed six grounds for

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of limitations. The district court carefully reviewed the claims

Clements raised in his habeas petition, looking first at the claims

that had been included in his ALOFAR and then at the claims

excluded therefrom, and concluded that only the jury hold-out claim

was exhausted because it was the only one "fairly presented by the

petitioner for review as a federal claim." 

3

More specifically, the court found that both the

sufficiency and the joint venture claims were presented to the SJC

solely as state law claims and that they therefore had not been

exhausted. As to both of these claims, the district court stated

that no federal cases were cited and the ALOFAR did not articulate

any federal issues in a recognizable way. 

With respect to the claims raised in the habeas petition

that had not appeared in the ALOFAR, the court found that three of

these claims were presented to the Appeals Court as state law

claims, while two were originally argued in reliance on both state

and federal law. One claim appeared in the habeas petition,

despite not being raised before either the Appeals Court or SJC.4
relief, the district court analyzed ten distinct claims. See

Clements, 359 F. Supp. 2d at 5-11; see e.g., supra note 3.

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Clements argued that all of these claims had some basis in federal

law, and that they ought to be found exhausted because a review of

the brief filed with the Appeals Court revealed those federal

bases. The district court found Clements' arguments meritless

because the Supreme Court's decision in Baldwin v. Reese, 541 U.S.

27, 32 (2004), held that a claim cannot be exhausted if it is not

presented directly to the state's highest court.

Finally, the district court rejected Clements' request

for a stay of his habeas petition because the failure to exhaust

was a result of "deliberate," "tactical" decisions by Clements'

counsel. The court noted our decision in Neverson v. Bissonnette,

261 F.3d 120, 126 n.3 (1st Cir. 2001), which endorsed granting

stays in certain cases, but concluded that this case did not merit

a stay. The district court issued a provisional decision, allowing

Clements to decide whether to proceed in federal court on his

single exhausted claim (by voluntarily dismissing the other,

unexhausted claims) or to dismiss his whole petition and return to

state court.

Clements requested additional time to respond to the

district court's provisional order, citing the Supreme Court's

then-recent decision regarding "mixed" habeas petitions, Rhines v.
 "Mixed" habeas petitions are those containing both exhausted 5

and unexhausted claims. Rhines held that, where certain criteria

are satisfied, such petitions should be stayed in federal court so

that the petitioner can return to state court to complete the

exhaustion process. 544 U.S. at 278.

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Weber, 544 U.S. 269 (2005). The request was granted and Clements 5

subsequently informed the district court that he would not

voluntarily dismiss any of his habeas claims (in order to proceed

with the exhausted claim), and that he "fe[lt] strongly that the

Supreme Court's decision [in] Rhines v. Weber supports his request

for a [s]tay." The district court then dismissed Clements'

petition pursuant to its earlier provisional order.

II.

The requirement that habeas petitioners exhaust all

available state remedies was originally imposed by the Supreme

Court in Rose v. Lundy, 455 U.S. 509, 518 (1982). Subsequently,

Congress codified the requirement as part of the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §

2254(b)(1)(A), and also added a one year statute of limitations for

the filing of habeas petitions, id. § 2244(d). Regardless of its

source, the exhaustion requirement has long served to infuse into

our habeas jurisprudence the interests of comity and federalism.

See, e.g., Rose, 455 U.S. at 518-19 (finding that "'it would be

unseemly in our dual system of government for a federal district

court to upset a state court conviction without an opportunity to

the state courts to correct a constitutional violation,'" and that
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"[a] rigorously enforced total exhaustion rule will encourage state

prisoners to seek full relief first from the state courts, thus

giving those courts the first opportunity to review all claims of

constitutional error") (quoting Darr v. Burford, 339 U.S. 200, 204

(1950)). 

In order to exhaust a claim, the petitioner must "present

the federal claim fairly and recognizably" to the state courts,

meaning that he "must show that he tendered his federal claim 'in

such a way as to make it probable that a reasonable jurist would

have been alerted to the existence of the federal question.'"

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000) (quoting

Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997)). This means

that "the legal theory [articulated] in the state and federal

courts must be the same." Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.

1987). This standard must be met, as a general rule, by "fairly

present[ing]" a federal claim "within the four corners of the

ALOFAR." Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir.

1988). We have previously held that a habeas petitioner may

accomplish this by doing any of the following: (1) citing a

provision of the federal constitution; (2) presenting a federal

constitutional claim in a manner that fairly alerts the state court

to the federal nature of the claim; (3) citing federal

constitutional precedents; or (4) claiming violation of a right

specifically protected in the federal constitution. Gagne, 835
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F.2d at 7. We have also noted that, in some situations, citations

to state court decisions which rely on federal law or articulation

of a state claim that is, "as a practical matter, []

indistinguishable from one arising under federal law," may suffice

to satisfy the exhaustion requirement. Nadworny v. Fair, 872 F.2d

1093, 1099-1100 (1st Cir. 1989). It is, however, clearly

inadequate to simply recite the facts underlying a state claim,

where those facts might support either a federal or state claim.

Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988).

Clements contends that all six of his habeas claims have

satisfied the exhaustion requirement because they were all

presented to the Appeals Court with some citation or reference to

federal cases. He explains that our precedent, Barresi v. Maloney

296 F.3d 48, 52 (1st Cir. 2002), permitting us to review certain

"backdrop" materials in some cases, in combination with

Massachusetts' procedural rules, effectively renders his brief to

the Appeals Court "presented" to the SJC, meaning that all the

arguments he made before the Appeals Court were made to the SJC.

The government responds by arguing that our decision in Barresi has

been invalidated by the Supreme Court's more recent decision in

Baldwin v. Reese, 541 U.S. 27 (2004). 

We begin with the two claims that were presented in the

ALOFAR, which the district court found to be unexhausted: first the

joint venture claim and then the sufficiency claim. We will
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briefly comment on the government's argument about the continued

vitality of our Barresi decision in the context of the joint

venture claim. We then turn to the claims that were omitted

entirely from the ALOFAR. Our review of the district court's

decision regarding exhaustion is de novo. Goodrich v. Hall, 448

F.3d 45, 47 (1st Cir. 2006); Barresi, 296 F.3d at 51. 

A. Joint Venture Claim

One of Clements' three ALOFAR claims — the joint venture

claim — was presented to the SJC solely in terms of state law. The

portion of Clements' ALOFAR discussing this claim relied on no

federal cases and did not label the claim as federal. It also made

no arguments using vague (and possibly federal law based) phrases,

such as "due process." Clements argues, nonetheless, that this

claim was exhausted because, under Barresi, 296 F.3d at 52, the

exhaustion analysis should include a review of "backdrop"

materials, such as the Appeals Court brief, wherein he says that

the federal nature of his claim was made clear. In order to

evaluate this claim, we must determine whether Barresi applies to

a claim styled like Clements' joint venture claim. 

1. Barresi v. Maloney

In Barresi, we held that, where a claim has not been

abandoned before the state's highest court, the exhaustion analysis

includes an examination of the "'backdrop against which [] later

filings [must] be viewed,'" 296 F.3d at 52 (second alteration in
 Although Barresi did not explicitly define or explain the 6

term "abandoned," that term has been interpreted to mean that a

claim was omitted entirely, meaning not argued on either state or

federal grounds, from the ALOFAR (or similar petition to a state's

highest court). 

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original) (quoting Scarpa v. DuBois, 38 F.3d 1, 7 (1st Cir. 1994)),

and that backdrop includes "the pleadings and filings

submitted . . . to lower state courts," id. Barresi also 6

recognized the continued validity of the "four corners rule," see

Mele, 850 F.2d at 821-23, and held that the "backdrop" materials

could only be consulted "under certain circumstances." 296 F.3d at

52.

At that time, we did not specify what those limited

circumstances might be. However, in Barresi itself, the ALOFAR at

issue included claims regarding the right to confront adverse

witnesses and due process, both of which are claims that may be

grounded either in state law or federal law or both, and cited

state court cases that relied upon federal law. Id. at 53-54.

Therefore, we found that Barresi's ALOFAR minimally satisfied the

exhaustion requirement. As part of the explanation for that

conclusion, we noted that the same claims had been raised in the

intermediate appellate brief, where Barresi had directly cited

federal precedents. Id. at 55-56. 

We have subsequently said that the Barresi backdrop rule

applies only in cases where the ALOFAR (or other petition to a

state supreme court) was ambiguous about the federal nature of a
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claim, as it was in Barresi. See Josselyn v. Dennehy, 475 F.3d 1,

3-4 (1st Cir. 2007) (noting that Barresi's "backdrop" principle

applies when there is ambiguity in the ALOFAR regarding the federal

nature of the claim); Goodrich, 448 F.3d at 48 (reviewing the

petitioner's lower court briefs as part of the exhaustion analysis,

because the ALOFAR relied primarily on state cases, but was

somewhat ambiguous about the source of the legal claim). 

Because this case involves an ALOFAR that was not

ambiguous, the Barresi "backdrop" principle, assuming it is still

valid, provides no assistance to Clements. We add that qualifier

about the continuing validity of the "backdrop" principle because

of the Supreme Court's decision in Baldwin v. Reese. 

In Baldwin, 541 U.S. at 32, the Court held that, where a

federal claim was not included in a petition, the exhaustion

analysis could not encompass materials beyond the petition or brief

filed with the state's highest court. In that case, the defendant

had filed a petition seeking discretionary appellate review by the

Oregon Supreme Court and had argued some claims based on federal

law and other claims based only on state law. The defendant later

filed a habeas petition and argued that at least one of the claims

which was presented on state law grounds could be deemed exhausted

because a review of the intermediate appellate court opinion showed

that he had made federal law arguments on that claim below.

Pursuant to Oregon's procedural rules, Oregon's Supreme Court
 Although the Supreme Court clearly assumed that Baldwin's 7

petition did not itself notify the state court that a federal claim

was intended, the petition in that case was not entirely clear.

The disputed claim involved the ineffective assistance of appellate

counsel and relied only on state law. However, the petition raised

a parallel claim regarding the ineffective assistance of the

defendant's trial counsel, and did make federal law arguments for

that claim. 541 U.S. at 30. Therefore, the petition in Baldwin

was, in a certain sense, ambiguous, much like the ALOFAR in

Barresi, because a reasonable jurist might have concluded that the

defendant intended to make state and federal arguments as to both

claims, given that they were based on the same legal principle, and

that he simply failed to explicitly articulate federal law grounds

for the claim concerning appellate counsel.

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justices had access to the lower court opinions in cases for which

a petition was filed, but their rules did not require them to

review such opinions. Id. at 31. Rather, the rules required a

party seeking review to assert all claims in the appellate brief.

At the outset of its analysis, the Supreme Court noted

its assumption that the defendant's "petition by itself did not

properly alert the Oregon Supreme Court to the federal nature of"

the claim. Id. at 30. The Court then reasoned that, in such a 7

context, permitting the exhaustion inquiry to include a review of

the lower court opinion simply because the state court judges had

an "opportunity" to review it would effectively mean "that those

judges must read the lower court opinions — for otherwise they

would forfeit the State's opportunity to decide that federal claim

in the first instance." Id. at 31. The Supreme Court found that

burden incompatible with the "considerations of federal-state

comity that the exhaustion requirement seeks to promote." Id. at
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32. Therefore, the Court held that "ordinarily a state prisoner

does not 'fairly present' a claim to a state court if that court

must read beyond a petition or a brief . . . that does not alert it

to the presence of a federal claim in order to find material . . .

that does so." Id.

The Barresi approach to the exhaustion analysis may be

incompatible with Baldwin. Barresi permits us to consider lower

court pleadings or opinions where the state court did not (and was

not required to) consider them itself. However, as we have

explained, we subsequently limited the Barresi backdrop principle

to cases in which there is an ambiguity in the ALOFAR about the

federal nature of the claim. Whether Baldwin forecloses

consideration of backdrop materials even in cases of ambiguous

petitions is a question we need not decide here because Clements'

joint venture claim is unmistakably couched only in state law

terms. We therefore reserve the issue of the continuing validity

of Barresi's backdrop principle for a case in which it is directly

raised.

2. Massachusetts' Procedural Rules

Clements offers an alternative to his Barresi argument in

support of his claim that he fairly presented his joint venture

claim to the SJC. He argues that Massachusetts Rule of Appellate

Procedure ("MRAP") 27.1 permits him to rely on the brief that he
 Massachusetts Rule of Appellate Procedure 27.1 reads in 8

part:

Within twenty days after the date of the rescript of the

Appeals Court any party to the appeal may file an

application for leave to obtain further appellate review

of the case by the full Supreme Judicial Court. . . . A

copy of the rescript and opinion, if any, of the Appeals

Court shall be appended to the application. . . . If any

three justices of the Supreme Judicial Court shall vote

for further appellate review . . . an order allowing the

application or the certificate, as the case may be, shall

be transmitted to the clerk of the Appeals Court . . . .

The clerk shall forthwith transmit to the clerk of the

full Supreme Judicial Court all papers theretofore filed

in the case and shall notify the clerk of the lower court

that leave to obtain further appellate review has been

granted.

Mass. R. of App. P. 27.1 (a), (b), (e).

The Reporter's Notes at the time Clements' appeal was filed

also indicated that, after further appellate review is granted,

"the case will be reviewed in the Supreme Judicial Court based on

the brief that was earlier filed in the Appeals Court." Id. at

Reporter's Notes to Appellate Rule 27.1(f) — 2001.

The SJC has the authority to respond to an ALOFAR in any of 9

three ways. It may reject an ALOFAR outright, thereby affirming

the Appeals Court decision without further argument or explanation.

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filed with the Massachusetts Appeals Court to demonstrate the

exhaustion of his claim.

MRAP Rule 27.1 says that the full Appeals Court record

should be transferred to the SJC after further appellate review is

granted. At the time of Clements' appeal, the rule also stated

that the SJC appeal would be conducted on the basis of the Appeals

Court briefs. See infra note 11 (explaining subsequent alteration 8

of this rule). Clements contends that after further appellate

review is granted (regardless of whether it is a limited or general

grant ), the entire Appeals Court brief is properly "before" the 9
It may also grant an ALOFAR, thereby exercising its discretionary

jurisdiction over the appeal and agreeing to consider all of the

legal questions raised in that appeal. Or, the SJC may issue a

limited grant in response to an ALOFAR, meaning that it has agreed

to consider a single discrete issue (or multiple issues, but fewer

than all) on appeal. See infra note 10. In this case, the SJC

chose the last of these options, and thus reviewed only one of the

three issues presented to it in Clements' ALOFAR.

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SJC, in the same way that the arguments contained in the ALOFAR

were before the SJC. He contends that MRAP 27.1 has the effect,

therefore, of rendering all the arguments he presented to the lower

court exhausted because the SJC was in possession of the full

Appeals Court record, including his Appeals Court brief. Citing

this "possession," and the provision regarding reliance on the

Appeals Court brief, Clements claims that the SJC is actually

required by state rules to review the lower court papers.

Consequently, he argues, his Appeals Court brief should be treated

as a part of the SJC's evaluation of his claim, just as the ALOFAR

is so treated, and not as additional or independent backdrop

material.

Clements' argument mis-understands the significance of a

limited grant of further appellate review. Clements relies on the

provision which allows an appeal, after further review has been

granted, to be argued on the basis of the Appeals Court brief for

his contention that the entire brief (not just the portion relevant

to a limited grant) must be reviewed by the SJC. See Mele, 850

F.2d at 822 (noting that MRAP 27.1 requires the lower court record
 By contrast, if the SJC issues a general grant of further 10

appellate review, it may review any issue in the case, regardless

of whether the appellant specifically raised it in the ALOFAR. In

other words, a general grant renders the entire Appeals Court

record subject to the SJC's jurisdiction, while a limited grant

places only discrete issues within the SJC's jurisdiction. See

Bradford v. Baystate Med. Ctr., 613 N.E.2d 82, 85 (Mass. 1993). We

do not address here the contours of an exhaustion analysis in the

context of a general grant of further appellate review.

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to be forwarded to the SJC "only if — and after — it grants an

ALOFAR"). As we have noted, the SJC in this case granted further

review on only one issue (the sufficiency claim). Under

Massachusetts rules, when the SJC issues a limited grant, it does

not decide any issues beyond the one (or ones) granted review.10

For this reason, the formal transfer of the Appeals Court record to

the SJC does not require the SJC to review briefing or other

materials relating to issues beyond the one(s) for which review was

granted. Here, the SJC's receipt of the lower court record,

including the Appeals Court brief, is relevant only to the one

issue (sufficiency of the evidence) on which it exercised its

appellate jurisdiction. On the issues for which review was denied,

such as the joint venture claim, the physical transfer of the

record and the use of the Appeals Court brief for argument on the

sufficiency claim are irrelevant to the exhaustion inquiry. 

We find further support for this conclusion in the

general principles articulated in Baldwin, 541 U.S. at 31-32.

Clements' interpretation of MRAP 27.1 would effectively require the

SJC to read and evaluate all of the arguments presented to the
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lower court after even a limited grant of further review, which is

precisely what Baldwin sought to preclude. In claiming that a

limited grant of further review places the full record (including

both the trial court and appeals court proceedings) before the SJC,

and that the exhaustion analysis should encompass that full record,

Clements invites the federal habeas court to ignore the state's

procedural rules. However, disregarding the difference between a

limited grant and a general grant would contravene Baldwin.

Baldwin clearly limits the exhaustion analysis to the materials

that a state's highest court reviewed while deciding whether to

grant a discretionary appeal or evaluating such an appeal on its

merits. Id. at 32. Materials that are merely accessible to that

court are not to be reviewed in an exhaustion inquiry. 

Under MRAP 27.1, the portion of the Appeals Court brief

relating to the joint venture claim was not before the SJC when it

reviewed Clements' appeal on the merits. Therefore, our review of

the district court's finding that the joint venture claim was not

exhausted must be based solely on the contents of the ALOFAR.

3. Exhaustion of the Joint Venture Claim

Clements has not sought to persuade us that his ALOFAR

described, or even hinted at, a federal basis for his joint venture

claim. The ALOFAR's discussion of this claim refers only to state

law, and none of the cited state cases relied on federal law. The

federal basis for the claim was not presented "fairly and
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recognizably," Casella, 207 F.3d at 20, nor did Clements articulate

a federal law argument "in such a way as to make it probable that

a reasonable jurist would have been alerted to the existence of the

federal question," Scarpa, 38 F.3d at 6. Without any references,

explicit or implicit, to federal law or principles, the ALOFAR's

presentation of the joint venture claim did not apprise the SJC of

a possible federal error in the state court's decision. Therefore,

we agree with the district court's conclusion that the joint

venture claim was not exhausted.

B. The Sufficiency Claim

Unlike the joint venture claim, the SJC granted Clements

further appellate review for his sufficiency claim. This important

fact distinguishes our analysis of this claim from all other claims

in this case, as well as the claims discussed in recent cases such

as Goodrich, 448 F.3d at 47, and Josselyn, 475 F.3d at 3-4 (where

the claims at issue were not even mentioned in the ALOFAR and were

deemed abandoned when the ALOFAR was filed with the SJC). The

grant of further appellate review is significant, as we have

explained, because of the procedural rules in Massachusetts.

Prior to a 2001 amendment, MRAP 27.1(f) stated that after

further appellate review is granted, a party may elect to proceed

with the appeal before the SJC on the basis of the Appeals Court

brief previously filed or may petition for permission to submit a

new ("separate or supplemental") brief. See Mass. R. App. P.
 The government places significant weight on the fact that 11

Clements labeled his new brief simply as "Brief" and did not

designate it a "Supplemental" brief. The title of the brief, as it

appeared on the cover page, was "Brief and Supplemental Record

Appendix." The government filed a responsive brief, which it

titled "Supplemental Brief." We think the labels applied to these

briefs are not helpful and we give them no weight. Our assumption

is, however, buttressed by a recent change in the Rules. In 2004,

the MRAP were modified so that a party who now elects to file a new

brief must rely exclusively on that brief; in other words, the

current rules require each party to submit to the SJC a single

brief, which can be either the Appeals Court brief or (with the

SJC's permission) a new brief. Mass. R. App. P. 27.1 (f) (2004

Amendment). This change suggests that previously parties were

arguing in reliance on both the Appeals Court brief and the

"separate or supplemental" brief.

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Reporter's Notes -- 2001. Clements requested, and was granted,

permission to file a new brief. At the time of Clements' appeal,

the Massachusetts Rules did not expressly indicate whether the new

brief would be considered exclusively or alongside the Appeals

Court brief. Because the Rules said that a new brief may be

supplemental, we assume here that the SJC reviewed both the Appeals

Court brief (on the sufficiency issue only) and the new or

supplemental brief. Therefore, we examine the ALOFAR, the 11

"supplemental" brief to the SJC, and the relevant portion of the

Appeals Court brief — the materials actually reviewed by the SJC —

to determine whether Clements' sufficiency claim was exhausted.

In his ALOFAR, relying on Massachusetts cases, Clements

urged the SJC to reverse his conviction because the "inconsistent,

recanted, extra judicial grand jury testimony" tying him to the

crime was not corroborated by any more reliable evidence, and
Clements' ALOFAR and Supplemental Brief indisputably did not 12

argue this claim on a federal law basis. The arguments therein

relied only on state law. The state cases cited by Clements also

did not rely upon federal law.

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therefore was insufficient under Commonwealth v. Daye, 393 Mass. 55

(1984). Clements argues that this claim was exhausted because his

Appeals Court brief included a citation to a Supreme Court

decision, Barber v. Page, 390 U.S. 719, 725 (1968), for the simple

proposition that the right to confront adverse witnesses is "a

trial right."12

We find it doubtful that this single cite to a Supreme

Court case is enough to satisfy the fair presentation requirement.

However, Clements' Appeals Court brief did label this claim as

follows: "The Court violated Clement's rights pursuant to the Sixth

and Fourteenth Amendments as well as Article XII of the

Massachusetts Declaration of Rights, when it held at trial and on

the motion for a new trial that the jury could consider Willis'

grand jury identification as substantive evidence of Clement's

[sic] guilt." In Baldwin, the Supreme Court found that such

labeling of a claim would be enough to satisfy the fair

presentation requirement. 541 U.S. at 32 (noting that a petitioner

who "wish[es] to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition or brief,

for example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a claim on
 One of these claims was presented in tandem with the jury 13

hold-out claim, as described above. See supra note 3.

 These claims were as follows: Habeas claim one was a due 14

process violation of Clements' right to a fair trial, based on his

absence from the courtroom during the trial court's inquiry into

one of the juror's potential biases. Habeas claim four was a

cumulative error claim, based on all of the mistakes Clements

alleges were made by the trial court. This claim was not mentioned

by Clements in his brief filed with us. Habeas claim five was a

due process violation resulting from the trial court's admission of

evidence of Clements' prior bad acts (namely, his prior and current

— at the time of the crime — involvement with drug use and sales).

The second sub-part of habeas claim two, see supra note 3, argued

that the trial judge committed error in failing to order a mistrial

after the jury indicated its deadlock twice.

-22-

federal grounds, or by simply labeling the claim 'federal'").

Therefore, with this label the sufficiency claim was exhausted, and

the district court erred in ruling otherwise.

C. Clements' Four Other Claims

Clements' habeas petition included, in addition to the

three ALOFAR claims (the joint venture and sufficiency claims

discussed above, and the jury hold-out claim found exhausted by the

district court), four additional claims. Three of these four 13

claims were presented to the Appeals Court, but none were raised

before the SJC because they were not mentioned in the ALOFAR.14

Both Baldwin, 541 U.S. at 32, and Barresi, 296 F.3d at 52

n.1, explicitly hold that claims omitted from an ALOFAR (or similar

petition) are unexhausted. See also Josselyn, 475 F.3d at 3 ("We

observed [in Mele], that finding exhaustion where a claim appeared

in the Appeals Court's decision but was omitted from the ALOFAR
-23-

would unfairly require 'the SJC to go over each and every opinion

of the [Appeals Court] with a fine tooth comb, in an unremitting

search for errors that the parties have neglected to

pursue . . . .'") (second alteration in original)(quoting Mele, 850

F.2d at 823). The district court therefore correctly ruled that

these four claims, omitted from the ALOFAR, were not exhausted.

D. Nature of the Remand

We have now determined that, in addition to the jury

hold-out claim deemed exhausted by the district court, the

sufficiency claim was also exhausted. Clements' habeas petition

remains mixed, and he cannot proceed on a mixed petition. See

Rose, 455 U.S. at 520-22. Where a petition is deemed mixed,

district courts must either dismiss the petition (in compliance

with the "total exhaustion rule" announced in Rose, id. at 522) or

permit the petitioner to dismiss his unexhausted claims, id. at

520. Therefore, we remand the petition to the district court,

where Clements should be given the opportunity to dismiss his

unexhausted claims. See Kelly v. Small, 315 F.3d 1063, 1069-70

(9th Cir. 2003) (remanding an entire petition to the district

court, after finding three claims exhausted despite district court

finding to the contrary, and instructing the district court to

allow the petitioner an opportunity to dismiss unexhausted claims);

see also Vang v. Nevada, 329 F.3d 1069, 1076 (9th Cir. 2003);

Valerio v. Crawford, 306 F.3d 742, 771 (9th Cir. 2002) (en banc);
 One court has used a different approach, simply affirming 15

the dismissal of the unexhausted claims and remanding the exhausted

claims. See Akins v. Kenney, 341 F.3d 681, 687 (8th Cir. 2003),

vacated on other grounds, 544 U.S. 957 (2005). 

 The "stay and abeyance" procedure is a response to AEDPA's 16

one-year statute of limitations and total exhaustion requirement;

it was endorsed by a number of circuit courts, including ours,

prior to the Supreme Court's decision in Rhines. See, e.g.,

Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001);

Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001); Freeman v.

Page, 208 F.3d 572, 577 (7th Cir. 2000); Calderon v. United States

Dist. Ct., 134 F.3d 981, 986-88 (9th Cir. 1998).

-24-

Rockwell v. Yukins, 217 F.3d 421, 425 (6th Cir. 2000); Murray v.

Wood, 107 F.3d 629, 632 (8th Cir. 1997). If Clements declines to 15

dismiss his unexhausted claims, the district court should dismiss

the entire petition without prejudice.

III.

The final issue on appeal is the district court's denial

of a stay of the entire petition to allow Clements to return to

state court with his unexhausted claims. We affirm the court's

decision. Although the court entered its provisional order before

Rhines v. Weber, 544 U.S. 269 (2005), was decided, and therefore

did not apply the standard articulated therein, its result is

consistent with that standard.

In Rhines, the Court identified the three prerequisites

for the "stay and abeyance" procedure. Id. at 277. The phrase 16

"stay and abeyance" means that the petitioner would receive a stay

in his federal habeas case, permitting him to return to state court

to complete the requirements for exhaustion on any unexhausted
 The court began its analysis by observing that, in its view, 17

"staying the petition pending the pursuit of new relief in the

state courts should be reserved only for exceptional cases where it

would be inequitable or unjust to do otherwise, such as where it

was impossible or impracticable for the petitioner to have pursued

the unexhausted claims in the state proceedings that resolved the

exhausted ones." 359 F. Supp. 2d at 12. This language suggests

that the district court may have used a more rigorous test than the

Supreme Court's good cause standard. However, as we indicate

below, Clements fails to satisfy either standard, so the difference

is irrelevant.

-25-

claims, and he could subsequently return to federal court to pursue

his habeas claims. The Court held that this procedure would be

appropriate where: (1) "the district court determines there was

good cause for the petitioner's failure to exhaust his claims first

in state court," id., (2) the "unexhausted claims are potentially

meritorious," id. at 278, and (3) "there is no indication that the

petitioner engaged in intentionally dilatory litigation tactics,"

id. In cases where these criteria are not satisfied, the Supreme

Court held that "the [district] court should allow the petitioner

to delete the unexhausted claims and to proceed with the exhausted

claims if dismissal of the entire petition would unreasonably

impair the petitioner's right to obtain federal relief." Id.

Although the district court did not have the benefit of

the Rhines decision before issuing its provisional order, it

nonetheless engaged in a version of a "good cause" analysis. The 17

court found that the omission of most of Clements' Appeals Court

claims from his ALOFAR was the result of a strategic decision by

Clements and his lawyer and could not constitute good cause. 
-26-

Clements has argued that all of his unexhausted claims

should be stayed, pending his return to state court, because of his

(and his counsel's) good faith reliance on the Massachusetts Rules

of Appellate Procedure. He contends that he filed his ALOFAR while

believing that the entire Appeals Court brief would be "presented

to" the SJC, and thus would be included in the exhaustion analysis.

As to the four habeas claims omitted entirely from the

ALOFAR, the intentional decision to omit some claims from the

ALOFAR cannot amount to good cause. We have a long-standing rule

that claims ommitted entirely from an ALOFAR cannot be exhausted.

See Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820-23 (1st Cir.

1988). Therefore, Clements could not have had good cause for

failing to exhaust these claims, and his reliance on the MRAP is

irrelevant. See Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007)

(affirming the district court's denial of a stay and abeyance,

where petitioner asserted good cause for his failure to exhaust

based on counsel's belief that arguments omitted from an ALOFAR

might still be exhausted). The district court did not abuse its

discretion in holding that Clements' decision to omit these claims

from his ALOFAR does not amount to good cause. 

Clements has not presented us with a specific argument

about the cause for his failure to exhaust the joint venture claim

(which was included in the ALOFAR, but only on state law grounds).

As to this claim, he again relies on his more general argument
 We note that Scarpa v. DuBois, 38 F.3d 1, 7 n.3 (1st Cir. 18

1994), had some language suggesting the possibility of inclusion of

lower court filings in the exhaustion analysis. Scarpa was, in a

sense, a harbinger of Barresi. However, Scarpa did not profess to

alter the "four corners" rule previously articulated in Mele v.

Fitchburg Dist. Court, 850 F.2d 817 (1st Cir. 1988), and seemed to

be limited to its facts. Moreover, the outcome in Scarpa did not

rely on its implicit pre-Barresi logic; we held that the relevant

state law claim presented in the ALOFAR was "functionally

identical" to a federal claim, and therefore was exhausted, id. at

7, based on our decision in Nadworny v. Fair, 872 F.2d 1093, 1099-

1100. In addition, Clements has never claimed that he relied on

Scarpa when filing his ALOFAR. For all of these reasons, we do not

-27-

that, based on the MRAP, he and his counsel had a good faith belief

that the Appeals Court brief would be "incorporated" into the

ALOFAR and, thus, included within our exhaustion analysis.

Inherent in this argument is the notion that the federal cases

cited in the Appeals Court brief in support of the joint venture

claim would suffice to satisfy the exhaustion requirement.

As we have explained above, see supra Part II.B, the 2001

version of the MRAP did not, as Clements suggests, result in

presentation of the full Appeals Court brief to the SJC. His

interpretation of the rules was unjustified. To the extent that

Clements has also implicitly argued that he relied on the Barresi

"backdrop" principle in deciding how to articulate the claims

within the ALOFAR, we find that argument to be implausible. At the

time Clements' ALOFAR was filed, in June 2001, our court had not

yet decided Barresi. Therefore, Clements could not have relied on

Barresi in his decision to present the joint venture claim only on

state grounds. Moreover, at that time, Mele, 850 F.2d at 823, 18
find that Clements' failure to exhaust can be explained by our

decision in Scarpa.

-28-

was the guiding precedent in our circuit and it clearly held that

federal claims ought to be "raised within the four corners of the

ALOFAR." Neither the state rules nor our decisions, then, could

have justified Clements' decision to argue the joint venture claim

exclusively on state law grounds. He has not shown good cause for

his failure to exhaust this claim.

Clements' lack of good cause means that, under Rhines, he

cannot take advantage of the "stay and abeyance" procedure.

Therefore, we affirm the denial of a stay.

IV.

In summary, we affirm the district court's decision

finding five of Clements' claims unexhausted. We reverse the

district court as to Clements' sufficiency claim. His Appeals

Court brief, which was properly before the SJC under the 2001

version of MRAP 27.1, satisfied the exhaustion requirement by

labeling that claim as federal. The petition is remanded to the

district court, so that Clements may decide whether to dismiss his

unexhausted claims. We also affirm the district court's denial of

a stay of his unexhausted claims pending Clements' return to state

court.

So ordered.