United States Court of Appeals

For the First Circuit

No. 99-2181

WILFRED EVICCI,

Petitioner,

v.

COMMISSIONER OF CORRECTIONS,

Respondent.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Boudin, Circuit Judges.

Wilfred Evicci on brief pro se.

September 22, 2000
-2-

Per Curiam. Evicci was convicted after jury trial in

a Massachusetts state court of rape, kidnapping and assault and

battery. The Massachusetts Appeals Court confirmed the

convictions on February 2, 1999, and the Massachusetts Supreme

Judicial Court (SJC) declined further appellate review on April

27, 1999. Evicci then filed a petition for habeas corpus in the

federal district court, which dismissed the petition on the

ground that Evicci had failed to exhaust state remedies with

respect to three of the four claims set forth in his petition.

See Rose v. Lundy, 455 U.S. 509, 510 (1982). Evicci now seeks

a certificate of appealability ("COA") from us under 28 U.S.C.

§ 2253(c), which pertinently requires that an applicant make "a

substantial showing of the denial of a constitutional right."

The district court's dismissal was based on the

procedural bar of lack of exhaustion. But in Slack v. McDaniel,

120 S. Ct. 1595, 1603 (2000), the Supreme Court held that an

erroneous procedural ruling does not necessarily preclude an

appellate court from considering whether a substantial showing

has been made of the denial of a constitutional right. Under

Slack, we must look further.

Evicci did not present three of his four claims to the

Massachusetts Appeals Court or to the SJC in his application for

further review, and, in that sense, Evicci did not exhaust his
-3-

state remedies. But because the state courts would deem

grounds not raised on the direct appeal to have been waived,

Commonwealth v. Gagliardi, 418 Mass. 562, 638 N.E.2d 20 (1994),

state remedies are no longer "available" within the meaning of

§ 2254(b)(1)(A). See O'Sullivan v. Boerckel, 526 U.S. 838, 847-

48 (1999); Carsetti v. Maine, 932 F.2d 1007, 1012 (1st Cir.

1991). There are, to be sure, exceptions to the waiver rule

under Massachusetts law, see, e.g., Commonwealth v. Graham, 431

Mass. 282, 287, 727 N.E.2d 51, 56 (2000), but Evicci does not

fit within any of them. Lacking "cause" for failing to raise

these three claims in state court, Evicci cannot now present

them in federal court. See Wainwright v. Sykes, 433 U.S. 72, 87-

91 (1977); cf. Coleman v. Thompson, 501 U.S. 722, 748 (1991).

Ordinarily, we would now turn to Evicci's Sixth

Amendment claim, which he did present in the state proceedings.

It is in fact a two-part claim: Evicci asserts that his rights

under the Confrontation Clause were violated by the trial

court's refusal to allow his attorney fully to explore drug use

on the part of the complaining witness; and he also asserts that

the attorney provided inadequate assistance, in violation of his

right to the effective assistance of counsel, by failing to

formulate and act upon an internally consistent defense

strategy. However, Evicci has not fully fleshed out his claims,
-4-

and the Commonwealth, in opposition in the district court,

declined to address the merits of any of Evicci's claims because

it relied solely on its lack of exhaustion rationale.

Although we could now call for memoranda from Evicci

and from the Commonwealth to illuminate the strength of the

Sixth Amendment claim, this would be an inefficient way to

handle the matter. We are not only without the district court's

assessment of the merits of the constitutional claim, but we

also lack most of the instruments that would be available to the

district court in making that assessment, including discovery,

a possible evidentiary hearing, and a possible report and

recommendation from a magistrate-judge. We do not even have

before us a transcript of the trial.

A very literal reading of section 2253(c) might lead

one to say that Evicci has therefore failed to justify the

issuance of a COA. Yet, in Slack v. McDaniel, the Supreme Court

took a practical approach to construing the statute and, after

finding that a procedural bar did not apply, itself remanded for

further development of the constitutional issue. Under the

present circumstances, we think that we have the authority to

grant the COA and to vacate the order dismissing the petition on

a procedural ground we find erroneous, leaving it to the
1See Roberts v. Sutton, 217 F.3d 1337 (11th Cir. 2000);

Jefferson v. Welborn, 2000 WL 862846 at *3 (7th Cir. June 29,

2000); Lambright v. Stewart, 2000 WL 1118937 (9th Cir. Aug. 4,

2000); Hernandez v. Caldwell, 2000 WL 1218361 (4th Cir. Aug. 28,

2000); cf. Hall v. Cain, 2000 WL 815463 (5th Cir. July, 2000).

-5-

district court to reconsider Evicci's Sixth Amendment claim.1

If this claim is resolved on the merits adversely to Evicci, he

may seek a COA in the district court and, failing that, in this

court.

We would not hesitate to deny a COA if we were sure

that the applicant had no reasonable basis for claiming that he

had been denied a constitutional right. However, in this

instance that branch of his claim based on the alleged

limitations on counsel's opportunity to explore drug use might

or might not have substance but, so far as it is explained, it

is not frivolous on its face. If the inadequate assistance

claim stood alone, we might say that the applicant failed to

provide us enough information to make even a colorable showing,

but, out of an abundance of caution, we think the district court

ought to address both claims since the matter must go back in

any event.

Nothing in this opinion is intended to suggest that the

applicant has made out a constitutional claim so substantial

that, had the claim had been rejected by the district court on

the merits, we would necessarily have granted a COA. And it
-6-

remains possible that there are other procedural or substantive

problems with the petition that the respondent may have asserted

or may wish to assert on remand. However, since the procedural

ruling cut short further proceedings and we think that ruling

was mistaken, further development of the issues should be done

in the first instance in the district court.

It is so ordered.