United States Court of Appeals

For the First Circuit

No. 02-2325

ARTHUR JACKSON,

Petitioner, Appellant,

v.

WILLIAM COALTER,

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

 Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

R. Matthew Rickman, with whom Frank A. Libby, Jr. and Kelly,

Libby & Hoopes, P.C. were on brief, for petitioner.

Dean A. Mazzone, Assistant Attorney General, Commonwealth of

Massachusetts, with whom Thomas F. Reilly, Attorney General, was on

brief, for respondent.

July 28, 2003
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SELYA, Circuit Judge. This convoluted habeas case

presents a tangled scenario that gives rise to difficult questions

of justiciability and constitutional law. The case has taken

innumerable twists and turns. It began when the petitioner pleaded

guilty to a charged crime, started serving a state-imposed

sentence, and then was charged with a second, more serious crime —

one potentially incompatible with the first. He responded by

moving to vacate his original conviction. The state court granted

his motion.

On reflection, the petitioner moved to reinstate that

conviction and attempted instead to raise a double jeopardy defense

to the second charge. The state courts (trial and appellate)

rebuffed these initiatives, and the petitioner repaired to the

federal courts. The district court denied the petitioner's

application for a writ of habeas corpus, ruling that the vacation

of the first conviction thwarted any claim of double jeopardy.

If that were not complicated enough, the petitioner then

struck out in a new direction. During the pendency of the federal

habeas proceeding, he pleaded guilty to the second charge in

exchange for a reduced sentence. After learning what had

transpired, the district court rescinded its earlier ruling and

dismissed the habeas petition as moot.

The petitioner assails both of the district court's

orders. We agree with the petitioner that, in the peculiar
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circumstances of this case, his guilty plea to the second charge

did not render the habeas proceeding moot. Nevertheless, we affirm

the denial of habeas relief. Adhering to the strictures of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (1996), we conclude that the state courts

neither acted contrary to, nor unreasonably applied, Supreme Court

precedent when they refused to honor the petitioner's claim of

double jeopardy.

I. BACKGROUND

During the afternoon of March 20, 1996, an armed intruder

entered a doctor's office in Jamaica Plain and departed with, among

other things, a checkbook. Later that day, police in Cambridge

arrested petitioner-appellant Arthur Jackson while he was

attempting to cash one of the purloined checks. The locales are

significant because prosecutorial responsibility in Massachusetts

operates on a county-by-county basis. See Mass. Gen. Laws ch. 12,

§§ 12-32. Jamaica Plain (where the robbery took place) is in

Suffolk County but Cambridge (where the attempted check-passing

occurred) is in Middlesex County.

When the Middlesex County District Attorney charged the

petitioner with receiving stolen property (the purloined checks),

he entered a guilty plea to that charge in Cambridge District

Court. The court imposed a thirty-month sentence (one year to
1For ease in reference, we hereafter refer to this motion

simply as a motion to vacate the conviction.

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serve and the balance suspended). The petitioner began serving his

sentence on April 4, 1996.

One day later, the Suffolk County District Attorney swore

out a criminal complaint charging the petitioner with armed robbery

in connection with the March 20 heist. The petitioner first

learned of this charge five months into his incarcerative term when

an outstanding arrest warrant (which had never been served)

rendered him ineligible to participate in a work-release program.

Fearing that his guilty plea to receiving stolen property would be

used against him at a trial for armed robbery, the petitioner filed

a pro se motion on November 25, 1996. The motion sought to

withdraw the earlier plea, annul the petitioner's conviction, and

set the stage for a new trial on the original charge.1 The gist of

the petitioner's argument was that the presiding judge in the

Cambridge District Court had conducted an insufficient colloquy

and, therefore, had erred in accepting his guilty plea. See, e.g.,

Commonwealth v. Lopez, 690 N.E.2d 809, 812 (Mass. 1998) (discussing

the constitutional requirements for acceptance of a guilty plea);

see also Mass. R. Crim. P. 12(c) (establishing certain procedural

prerequisites for same).

On December 5, 1996, the petitioner was summonsed to the

West Roxbury District Court for arraignment on the Suffolk County
2Since the motion amounted to a collateral attack on a final

judgment of conviction, the petitioner was not entitled as of right

to court-appointed counsel in connection with it. Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987); Commonwealth v. Conceicao, 446

N.E.2d 383, 387 (Mass. 1983).

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complaint. One week later, a Suffolk County grand jury indicted

him for armed robbery. The new indictment included an allegation

that the petitioner was a habitual offender. If proven, this

allegation would require a sentence of life imprisonment. See

Mass. Gen. Laws ch. 265, § 17; id. ch. 279, § 25.

On December 28, 1996, the petitioner completed serving

the incarcerative portion of his sentence for receiving stolen

property. His freedom was short-lived. When he appeared the next

week at Suffolk Superior Court for a pretrial hearing on the armed

robbery charge, he was detained. His detention lasted from that

date (January 2, 1997) until his eventual release, under

circumstances that we shortly shall explain, on July 2, 2002.

On January 14, 1997, the petitioner appeared pro se in

the Cambridge District Court for a hearing on his previously filed

motion to vacate his conviction for receiving stolen property.2 At

the request of court personnel, an itinerant attorney consulted

with the petitioner and informed the presiding judge that the

petitioner "really need[ed] to be represented by counsel in this

case." The lawyer urged the court to withhold any action until the

petitioner's court-appointed counsel in the armed robbery case

could appear. Speaking for himself, the petitioner pressed for
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vacation of the receiving stolen property conviction, emphasizing

that he had not been given proper warnings in advance of his guilty

plea. The court announced its intention to listen to a tape

recording of the plea proceeding and continued the hearing until

January 30 so the petitioner's attorney could attend.

For reasons that remain obscure, neither the petitioner

nor his court-appointed counsel in the armed robbery case appeared

at the January 30 hearing. The court, however, had reviewed the

tape of the plea proceeding and found the colloquy inadequate.

Stating that "I am the one who erred, and I am correcting the error

now," the presiding judge vacated the petitioner's conviction for

receiving stolen property. The district attorney's office

eventually declined to reprosecute the receiving stolen property

charge.

The armed robbery case remained velivolant and, after

several months had passed, the petitioner began to have second

thoughts about his strategy. On November 19, 1997, he filed a

counseled motion in the Cambridge District Court requesting the

reinstatement of his prior conviction. At around the same time, he

filed a counseled motion in the Suffolk Superior Court seeking

dismissal of the armed robbery charge on double jeopardy grounds.

Both motions were denied. The petitioner then appealed the double

jeopardy ruling to the Massachusetts Supreme Judicial Court (SJC).

A single justice of the SJC, acting pursuant to Mass. Gen. Laws ch.
3The court apparently suspected that the failure of

notification resulted from inadvertence. After all, the parties

were represented by different counsel in the two cases (i.e., the

petitioner was represented by one lawyer in the armed robbery case

and by a second, unrelated lawyer in the federal habeas case,

whereas the Commonwealth was represented by the district attorney's

office in the former case and by the Attorney General in the latter

case). For their part, the petitioner's lawyers contend that they

did furnish contemporaneous notice of the guilty plea to the

district court. We need not resolve this conflict.

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211, § 3, ruled that the petitioner's interlocutory appeal was

immediately reviewable but nonetheless rejected the appeal on the

merits. On October 14, 1999, the full court affirmed that

decision. See Jackson v. Commonwealth, 717 N.E.2d 1001, 1005

(Mass. 1999).

While still awaiting trial in the armed robbery case, the

petitioner filed a federal habeas petition. The federal district

court held a hearing on March 7, 2002, and took the matter under

advisement. On July 2, 2002, the petitioner and Suffolk County

prosecutors reached an accord anent the armed robbery charge: in

exchange for the petitioner's guilty plea, the Commonwealth agreed

to abandon the habitual offender allegation and recommend a "timeserved" sentence. The Suffolk Superior Court accepted the plea,

imposed the agreed sentence, and released the petitioner on a term

of supervised probation. The federal district court later stated

that it was not notified of these developments when they occurred.3

On July 30, 2002, the federal district court, still

unaware of the recent plea, denied the petition for habeas relief
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on the merits. See Jackson v. Coalter, 2002 WL 1760879, at *4 (D.

Mass. July 30, 2002). Approximately two weeks later, the

Commonwealth moved to reconsider the order. In that motion, the

Attorney General informed the court of the plea bargain in the

armed robbery case and argued that the consummation of that bargain

rendered the habeas petition moot. The district court agreed; in

successive orders, it first vacated its earlier merits decision and

then dismissed the habeas petition as moot.

The petitioner seasonably appealed both the order of

dismissal on the merits and the subsequent order declaring the

controversy moot. The appeal is properly before us, as the

district court has granted a broadly worded certificate of

appealability. See 28 U.S.C. § 2253(c).

II. ANALYSIS

To prevail in this appeal, the petitioner must overcome

two adverse rulings. Common sense suggests that we address these

rulings in reverse chronological order.

A. Mootness.

We afford plenary review to the district court's

determination that the petitioner's guilty plea to the armed

robbery charge rendered his habeas petition moot. See Simpson v.

Matesanz, 175 F.3d 200, 205 (1st Cir. 1999); see also Scarpa v.

Dubois, 38 F.3d 1, 9 (1st Cir. 1994). Initially, however, we deal

with a pair of preliminary matters.
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First, we note that even though the guilty plea to the

armed robbery charge ended the petitioner's incarceration, he

remains under supervised probation. Thus, he is still sufficiently

"in custody" to pursue federal habeas relief. See Lefkowitz v.

Fair, 816 F.2d 17, 19 (1st Cir. 1987) (collecting cases); see

generally Jones v. Cunningham, 371 U.S. 236, 240 (1963) (holding

that the "in custody" requirement for habeas relief necessitates

only "restraints on a man's liberty, restraints not shared by the

public generally").

Second, the petitioner filed his habeas application under

28 U.S.C. § 2254. The district court perspicaciously observed that

the petitioner was still awaiting trial on the armed robbery charge

when he sought habeas relief; that his status was, therefore, that

of a pretrial detainee; and that this circumstance called into

question the appropriateness of the jurisdictional allegation. See

Jackson v. Coalter, 2002 WL 1760879, at *1; see also 28 U.S.C. §

2254(a) (indicating that section 2254 relief is available only to

"a person in custody pursuant to the judgment of a State court").

The district court nonetheless proceeded to adjudicate the matter

on the basis that, under 28 U.S.C. § 2241(c)(3), a writ of habeas

corpus is potentially available to any state prisoner "in custody

in violation of the Constitution or laws . . . of the United

States." This problem does not concern us inasmuch as the
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petitioner has now pleaded guilty to the armed robbery charge, and

his guilty plea subjected him to a state court judgment.

Against this backdrop, we turn to the question of

mootness. A habeas petition is moot if it fails to present a live

case or controversy. See Spencer v. Kemna, 523 U.S. 1, 7 (1998);

see generally Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)

(explaining that the "case-or-controversy requirement subsists

through all stages of federal judicial proceedings"). The question

before us is whether the petitioner's guilty plea foreclosed his

habeas claims (and, thus, rendered his petition moot).

In arguing the affirmative of the proposition, the

Commonwealth chiefly relies upon the Supreme Court's decision in

United States v. Broce, 488 U.S. 563 (1989). In Broce, the

defendants were charged with rigging two separate sets of bids for

state highway contracts. Id. at 565. They eventually pleaded

guilty to two counts of conspiracy. Id. at 566. After another

court, trying a different group of defendants, had ruled that the

rigged bids were part and parcel of a single conspiracy, the Broce

defendants mounted a collateral attack on their second conviction.

Id. at 567. The Supreme Court concluded that "[a] plea of guilty

and the ensuing conviction comprehend all of the factual and legal

elements necessary to sustain a binding, final judgment of guilt

and a lawful sentence." Id. at 569. Consequently, the defendants'

guilty pleas foreclosed any opportunity to revisit the factual
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predicate upon which their convictions rested. See id. at 571

("When respondents pleaded guilty to two charges of conspiracy on

the explicit premise of two agreements which started at different

times and embraced separate objectives, they conceded guilt to two

separate offenses.").

The Commonwealth says that Broce stands for the blackletter rule that a defendant's guilty plea pretermits any

subsequent collateral attack aimed at negating the resulting

conviction. That formulation, however, reaches beyond the holding

in Broce, which contemplated "exception[s] to the rule barring

collateral attack on a guilty plea." Id. at 574. The exceptions

include guilty pleas such as that discussed in Menna v. New York,

423 U.S. 61 (1975) (per curiam), that is, pleas entered in response

to charges "which the State may not constitutionally prosecute."

Id. at 62 n.2.

Menna is of considerable interest here. In that case,

the defendant, having been granted immunity, refused to testify and

was sentenced for contempt of court. Id. at 61. After his

release, the state indicted him for once again refusing to answer

the same questions. Id. He pleaded guilty to this criminal charge

but then appealed his conviction on double jeopardy grounds. Id.

at 61-62. The state courts ruled that his guilty plea waived his

right to assert a double jeopardy claim. Id. at 62. The Supreme
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Court reversed, holding that a guilty plea does not forgive the

unconstitutionality of an indictment. Id.

The Menna Court emphasized that a guilty plea acts

primarily to "remove[] the issue of factual guilt from [a] case."

Id. at 62 n.2. In most instances, factual guilt is the only

pertinent question and "[a] guilty plea, therefore, simply renders

irrelevant those constitutional violations not logically

inconsistent with the valid establishment of factual guilt." Id.

A guilty plea, however, does not bar a defendant from contending

"that the State may not convict [him] no matter how validly his

factual guilt is established." Id.

The Commonwealth suggests that Broce trumps Menna. We

reject this suggestion. The guilty pleas in Broce admitted factual

elements that were logically inconsistent with the defendants'

subsequent allegations of a constitutional breach. See Broce, 488

U.S. at 570-71. In contrast, the defendant in Menna disputed the

very legitimacy of a second indictment; his guilty plea admitted no

factual predicate that sufficed to make irrelevant his double

jeopardy claim. See Menna, 423 U.S. at 61. The decision in Broce

did not overrule Menna, see Broce, 488 U.S. at 574 ("Menna v. New

York . . . has no application to the case at bar."), and the

decision in Menna remains good law. Therefore, we must adhere to

it. See United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323,

335 n.19 (1st Cir. 2003) ("Our marching orders are clear: follow
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[Supreme Court] decisions until the Supreme Court overrules them.")

(quoting United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d

605, 608 (7th Cir. 2000)).

The distinction between Broce and Menna is critically

important in the case at hand. Here, as in Menna, the petitioner's

challenge implicates the legitimacy ab initio of the second

indictment. He contends, in effect, that even assuming his factual

guilt, the Commonwealth could not constitutionally prosecute him on

the armed robbery charge. Menna teaches that "[w]here the State is

precluded by the United States Constitution from haling a defendant

into court on a charge, federal law requires that a conviction on

that charge be set aside even if the conviction was entered

pursuant to a counseled plea of guilty." Menna, 423 U.S. at 62.

The petitioner's thesis is that the Commonwealth was so precluded

here, and, thus, acted unconstitutionally when it brought the

second indictment. This thesis — the validity of which we shall

test in the next section of this opinion — presents a live

controversy. See id. at 62 n.2 (noting that "a plea of guilty to

a charge does not waive a claim that — judged on its face — the

charge is one which the State may not constitutionally prosecute").

Consequently, the habeas case is not moot. See Spencer, 523 U.S.

at 7-8 (holding that a habeas petitioner satisfies the case or

controversy requirement so long as he suffers from or is threatened
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by a concrete injury that is traceable to allegedly improper state

action and redressable by the invalidation of that action).

B. The Merits.

We divide our discussion of the merits into three

segments corresponding to the petitioner's three principal claims.

1. The Double Jeopardy Claim. We review the SJC's

denial of the petitioner's double jeopardy claim under the

constraints of the AEDPA. Consequently, we may grant relief

thereunder only if the state court adjudication either "resulted in

a decision that was 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), or

"was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding," id. §

2254(d)(2).

The relevant provision for purposes of this appeal is

section 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000),

the Supreme Court fleshed out a petitioner's obligations under that

section and outlined the narrow circumstances in which federal

habeas courts are permitted to disturb state convictions. The

Court interpreted "contrary to" to mean "diametrically different"

or "mutually opposed." Id. at 405. Therefore, a state court

decision is "contrary to" established Supreme Court precedent if

the state court manages to "arrive[] at a conclusion opposite to
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that reached by [the Supreme] Court on a question of law" or

"decides a case differently than [the Supreme] Court has on a set

of materially indistinguishable facts." Id. at 413.

As to the other facet of section 2254(d)(1), the Court

said that an "unreasonable application" of Supreme Court case law

occurs if "the state court identifies the correct governing legal

principle from th[e] Court's decisions but unreasonably applies

that principle to the facts of the prisoner's case." Id. This

type of scenario may emerge when a state court either "unreasonably

extends a legal principle . . . to a new context where it should

not apply or unreasonably refuses to extend that principle to a new

context where it should apply." Id. at 407. The Court emphasized,

however, that not every incorrect application of federal law

amounts to an unreasonable application of federal law. Id. at 410.

The difference is one of degree. See McCambridge v. Hall, 303 F.3d

24, 36 (1st Cir. 2002) (en banc) (requiring an "increment of

incorrectness" in the state court ruling that is "great enough to

make the decision unreasonable in the independent and objective

judgment of the federal court"). It follows, then, that a habeas

petitioner must do more than merely identify an incorrect result.

We assess the petitioner's challenge to the SJC's double

jeopardy ruling under this restrictive framework. The Double

Jeopardy Clause provides that no person shall "be subject for the

same offence to be twice put in jeopardy of life or limb." U.S.
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Const. amend. V, cl. 2. This proviso affords protection in three

different types of situations:

It protects against a second prosecution for

the same offense after acquittal. It protects

against a second prosecution for the same

offense after conviction. And it protects

against multiple punishments for the same

offense.

United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir. 1990)

(quoting N. Carolina v. Pearce, 395 U.S. 711, 717 (1969)); accord

United States v. Morris, 99 F.3d 476, 478 (1st Cir. 1996); United

States v. Stoller, 78 F.3d 710, 714 (1st Cir. 1996).

Building on the second of these three safeguards, the

petitioner constructs the following hypothesis: (1) he pleaded

guilty to receiving stolen property and that plea ripened into a

conviction; (2) from and after the date of that conviction, double

jeopardy protections precluded the Commonwealth from indicting him

for a mutually exclusive crime (for that would constitute "the same

offense"); and (3) the crimes of receiving stolen property and

armed robbery, when involving the same objects, are mutually

exclusive. Hence, the Double Jeopardy Clause forbade the

Commonwealth from initiating the armed robbery prosecution.

The first element on which the petitioner's hypothesis

rests is unassailable: at least in these circumstances, a guilty

plea is itself a conviction. See Kercheval v. United States, 274

U.S. 220, 223 (1927). The SJC assumed, without deciding, the

validity of the third element. See Jackson, 717 N.E.2d at 1003 &
4Other courts have divided on whether a person may be

convicted of both robbery of certain property and receiving that

property. Compare, e.g., Heflin v. United States, 358 U.S. 415,

419-20 (1959) (holding, under federal criminal statutes, that a

defendant may not be punished for both armed bank robbery and

receiving stolen bank property), and Dove v. Peyton, 343 F.2d 210,

213-14 (4th Cir. 1965) (similar; applying Virginia law), with,

e.g., Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997) (holding

that Alabama law permits a prosecution for robbery following a

conviction for receiving stolen property), and State v. Sardeson,

437 N.W.2d 473, 480-81 (Neb. 1989) (similar; applying Nebraska

law).

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n.4 (suggesting that Massachusetts case law would deem the crimes

of receiving stolen property and armed robbery of the same property

to constitute a single offense).4 Since this is largely a question

of Massachusetts law, we too will assume arguendo that a defendant

cannot lawfully be convicted of both crimes. Thus, our inquiry

focuses on the second element of the petitioner's hypothesis.

Central to our analysis is a recognition that the

petitioner and the SJC have configured the double jeopardy issue

differently. The petitioner does not look beyond the fact of the

original conviction for receiving stolen property, treating the

vacation of that conviction as irrelevant to the double jeopardy

analysis. In his view, the Commonwealth was constitutionally

barred from soliciting the armed robbery indictment after it

obtained the original conviction for receiving stolen property; it

secured the armed robbery indictment while that conviction was

still on the books; and so, because the indictment was
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unconstitutional when contrived, the Commonwealth should not have

been permitted to pursue it.

The SJC used a wider-angled lens. It examined the

constitutionality of the second indictment in light of both the

prior conviction and the subsequent vacation of that conviction.

Gauging the constitutionality of the armed robbery indictment from

that perspective, "there [wa]s no longer a final adjudication of

guilt or innocence" on the receiving stolen property charge.

Jackson, 717 N.E.2d at 1003. Far from deeming the petitioner's

voluntary withdrawal of his guilty plea as irrelevant, the SJC

thought it was "[c]ritical to the disposition" of his double

jeopardy argument. Id. In short, the petitioner and the SJC were

arguing past each other, advocating parallel but materially

different analyses.

Given the unique facts of this case, that discrepancy is

problematic for the petitioner. On habeas review, the AEDPA

requires us to focus our attention on the state court's analysis.

The petitioner's obligation is not simply to offer a plausible

argument for the unconstitutionality of his conviction, but,

rather, to identify how the state court's analytical path strayed

beyond permissible bounds. See 28 U.S.C. § 2254(d)(1).

In this instance, the SJC relied primarily on the

decision in United States v. Scott, 437 U.S. 82 (1978). There, the

defendant sought and won dismissal of criminal charges. Id. at 84.
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After the government had appealed, he attempted to invoke double

jeopardy protections to forestall a subsequent trial. Id. The

Supreme Court rejected this tactic, holding that the government

could appeal the dismissal without triggering double jeopardy

concerns. Id. at 86-87. The court pointed out that the defendant

had opted to move for dismissal in the first place and stated that

"the Double Jeopardy Clause . . . does not relieve a defendant from

the consequences of his voluntary choice." Id. at 99.

The petitioner insists that Scott is inapposite. He

posits that its holding would apply only if he had moved to

withdraw his guilty plea for receiving stolen property and then

relied upon the Double Jeopardy Clause in an effort to preclude the

Commonwealth from retrying him on that same charge. The petitioner

sees this case as falling instead within a different precedential

orbit.

One of the cases comprising that orbit is Blackledge v.

Perry, 417 U.S. 21 (1974). There, while a convicted defendant's

appeal was pending, the government indicted him for a more serious

(yet mutually exclusive) crime. Id. at 22-23. Even though the

defendant pleaded guilty to this second charge, the Supreme Court

later approved habeas relief because it found the second

prosecution to be a vindictive response to the defendant's exercise

of his right to appeal, so that "[t]he very initiation of the

proceedings . . . operated to deny [the petitioner] due process of
5This sequencing also serves to distinguish other cases on

which the Commonwealth relies. See, e.g., Pearce, 395 U.S. at 719-

20; United States v. Ball, 163 U.S. 662, 671-72 (1896).

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law." Id. at 30-31. The petitioner's second supporting authority

is Menna. As noted above, Menna prohibits a state from "haling a

defendant into court on a charge" when double jeopardy applies.

Menna, 423 U.S. at 62. The petitioner likens the armed robbery

indictment to a constructive "haling" that the Constitution

prohibited the Commonwealth from pursuing.

To be sure, all three of these cases offer plausible

analogies to the case that confronts us. The fact remains,

however, that none of them is sufficiently on point to dictate the

result. Scott differs materially from the instant case because

there, unlike here, the defendant's motion to vacate the original

conviction was granted before the state sought a second (allegedly

incompatible) indictment.5 See Scott, 437 U.S. at 84. Blackledge

is distinguishable because there, unlike here, the state's decision

to pursue a second indictment had the effect of punishing the

defendant for exercising his right to appeal. See Blackledge, 417

U.S. at 28. Menna is distinguishable because there, unlike here,

the second conviction occurred at a time when the first conviction

remained intact. See Menna, 423 U.S. at 61. Since there is no

clearly established Supreme Court precedent directly on point, the

SJC's rejection of the petitioner's double jeopardy claim does not

transgress the "contrary to" prong of 28 U.S.C. § 2254(d)(1). See
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Williams, 529 U.S. at 405-06; see also Ouber v. Guarino, 293 F.3d

19, 26 (1st Cir. 2002) ("Where a relevant but not factually

congruent precedent exists, the state court need only apply a test

consistent with the one announced by the Supreme Court in order to

avoid the toils of section 2254(d)(1)'s 'contrary to' clause.").

Given the idiosyncratic nature of this case and the

dearth of pertinent authority, we likewise conclude that the SJC's

reliance on Scott, rather than Blackledge or Menna, is not an

unreasonable application of Supreme Court case law. Reasonableness

depends on context. For the purposes of determining the

reasonableness of a state court's decision under section

2254(d)(1), we have declared that "if it is a close question

whether the state decision is in error, then the state decision

cannot be an unreasonable application." McCambridge, 303 F.3d at

36. This principle carries the day here. There is support in the

Supreme Court's case law for the competing positions of the

petitioner and the SJC, and nothing in Blackledge, Menna, or their

progeny is so compelling as to render the SJC's reliance on Scott

unreasonable.

The petitioner's fallback position bears a close

relationship to his main argument. He asserts that since the

Commonwealth was constitutionally barred from indicting him for

armed robbery when the grand jury acted, it could cure the

constitutional violation only by restoring the status quo ante
6We hasten to add that authorities of this kind occasionally

may offer insight into a section 2254(d)(1) determination. We have

acknowledged, for example, that "[r]eference to such cases may be

especially helpful when the governing Supreme Court precedent

articulates a broad principle that applies to a wide variety of

factual patterns." Ouber, 293 F.3d at 26. That principle is

inapposite here inasmuch as the petitioner advances a proposition

that simply has not been embraced by the Supreme Court. The

petitioner's authorities are the proposition's originating sources,

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(that is, by withdrawing the offending indictment). To support

this claim, the petitioner leans heavily upon a concurring opinion

authored by Justice Blackmun and a smattering of decisions from

federal courts of appeals. See, e.g., Morris v. Mathews, 475 U.S.

237, 255 (1986) (Blackmun, J., concurring); Murphy v. Puckett, 893

F.2d 94, 97 (5th Cir. 1990).

We need not dwell on these authorities because none of

them suffices to overcome the obstacle created by the AEDPA. The

reference in 28 U.S.C. § 2254(d)(1) to "clearly established Federal

law" encompasses only the holdings of the Supreme Court. See

Williams, 529 U.S. at 412 ("That statutory phrase refers to the

holdings, as opposed to the dicta, of th[e Supreme] Court's

decisions as of the time of the relevant state-court decision.");

Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (noting that

"factually similar cases from the lower federal courts may inform"

determinations under section 2254(d)(1), but only Supreme Court

holdings can provide the "seal of approval"). Generally speaking,

this formulation excludes concurring and dissenting opinions of

individual Justices as well as decisions of the courts of appeals.6
not clarifying or explanatory sources; as such they do not meet the

demands of section 2254(d)(1).

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On a more fundamental level, the petitioner's argument

again fails to address the bona fides of the SJC's approach. Even

if the Commonwealth were barred from indicting the petitioner for

armed robbery before the conviction for receiving stolen property

was vacated, our decision must account for the petitioner's

voluntary motion to vacate that conviction — a step that opened the

door for the successful prosecution of the armed robbery charge.

The SJC ruled that the Commonwealth was not constitutionally barred

from pursuing the second indictment after the vacation of the first

conviction at the petitioner's behest. Jackson, 717 N.E.2d at

1003. For the reasons discussed above, that ruling — whether or

not precisely correct as a matter of constitutional law — neither

contravenes nor unreasonably applies Supreme Court precedent. On

this record, then, the Double Jeopardy Clause does not open an

avenue leading to habeas relief.

2. The Collateral Estoppel Claim. We turn next to the

petitioner's asseveration that principles of collateral estoppel

precluded a finding that he committed the armed robbery. Section

2254(d)(1) governs this asseveration as well, so our analysis of it

assumes the same contours as our discussion of the petitioner's

double jeopardy claim.
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Collateral estoppel "means simply that when a[n] issue of

ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same

parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443

(1970). The petitioner seeks to apply this tenet in support of the

claim that the conviction for receiving stolen property remained a

valid and final judgment notwithstanding its vacation (and, thus,

precluded the Commonwealth from proceeding on the armed robbery

charge). To this end, he insists that the conviction rested on the

factual predicate that he received stolen property; that its

vacation had no corrosive effect on these (previously established)

ultimate facts; and that, therefore, the indictment accusing him of

stealing that very property was founded on a legal impossibility.

The SJC rejected this theory, concluding that vacatur of the

conviction meant that "there now is no final determination of the

facts," so that "[c]ollateral estoppel does not apply." Jackson,

717 N.E.2d at 1004.

This conclusion is neither contrary to, nor an

unreasonable application of, Supreme Court precedent. After all,

it is hornbook law that "[a] vacated judgment has no preclusive

force either as a matter of collateral or direct estoppel or as a

matter of the law of the case." No East-West Highway Comm. v.

Chandler, 767 F.2d 21, 24 (1st Cir. 1985); accord U.S. Philips

Corp. v. Sears Roebuck & Co., 55 F.3d 592, 598 (Fed. Cir. 1995);
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Franklin Sav. Ass'n v. Office of Thrift Superv., 35 F.3d 1466, 1469

(10th Cir. 1994); 18A Charles Alan Wright et al., Federal Practice

and Procedure § 4432 (2002). The petitioner points to no decision

of the Supreme Court that casts doubt upon this hoary principle.

Thus, the AEDPA forbids us from disturbing the SJC's resolution of

the collateral estoppel claim.

3. The Due Process Claim. The petitioner also contends

that the vacation of his conviction for receiving stolen property

occurred at the expense of his right to procedural due process.

This abridgement occurred, the petitioner says, when the Cambridge

District Court "denied [him] a meaningful opportunity to be heard

on his motion [to vacate his conviction]." Appellant's Br. at 37.

The federal district court determined that this claim was not ripe

for habeas review since its merits had never been fully adjudicated

by the state courts. Jackson v. Coalter, 2002 WL 1760879, at *3.

We uphold this determination.

The AEDPA directs 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 codified preexisting

law. The Supreme Court has long maintained "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)
-26-

(discussing Ex parte Royall, 117 U.S. 241, 251 (1886)). We have

interpreted this imperative as requiring a habeas petitioner to

"have presented both the factual and legal underpinnings of his

claim to the state courts in order for us to find it exhausted."

Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). Moreover,

we have made no bones about the fact that a failure to exhaust

ordinarily is "fatal" to the prosecution of a habeas petition.

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

The petitioner concedes that, as a general rule,

exhaustion is required. He maintains, however, that he exhausted

this claim by invoking due process protections in the state courts.

This is partially true, but misleading. The issue that he now

seeks to advance was never properly exhausted. We explain briefly.

The petitioner mounted two legal campaigns that led him

to the SJC. The first foray culminated in the SJC's opinion

rejecting his double jeopardy and collateral estoppel claims. See

Jackson, 717 N.E.2d at 1003-04. Careful perscrutation of the

record indicates that the petitioner never adequately articulated

a due process claim at or before that stage of the proceedings.

The closest that he came was his plaint that the Cambridge District

Court allowed his "uncounseled" motion to vacate the original

conviction despite the fact that he "needed counsel to determine

whether to proceed with the motion at all."
7Before us, the petitioner does not challenge the SJC's

resolution of his Sixth Amendment claim. Accordingly, we take no

view of that ruling.

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The SJC treated this plaint as a claim rooted in the

petitioner's Sixth Amendment right to counsel and concluded that no

violation of that right had occurred. Id. at 1005. This was a

reasonable reading of the petitioner's claim as then presented.7

More importantly, it did not suffice to exhaust the differently

grounded Fifth Amendment claim that the petitioner now seeks to

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

(holding that to satisfy the exhaustion requirement "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 this federal claim"); Martens, 836 F.2d at 717 ("[T]he

exhaustion doctrine requires a habeas applicant to do more than

scatter some makeshift needles in the haystack of the state court

record. The ground relied upon must be presented face-up and

squarely; the federal question must be plainly defined.").

Following the SJC's rejection of his initial appeal, the

petitioner persevered in the state courts. During his second

campaign, he filed a motion to dismiss the armed robbery charge —

a motion that included a better-articulated due process claim. The

Suffolk Superior Court rejected that claim, but the SJC refused to

entertain an immediate appeal, holding that interlocutory review

was not available. Jackson v. Commonwealth, 770 N.E.2d 469, 471
8Adopting the rule in Abney v. United States, 431 U.S. 651,

660-62 (1977), Massachusetts affords interlocutory review of double

jeopardy claims. See Neverson v. Commonwealth, 546 N.E.2d 876, 877

(Mass. 1989) ("A criminal defendant who raises a double jeopardy

claim of substantial merit is entitled to review of the claim

before he is retried."). Most other issues must await the entry of

final judgment before a right of appellate review attaches. See

S.J.C. Rule 2:21(2); see also Glawson v. Commonwealth, 764 N.E.2d

869, 869-70 (Mass. 2002).

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(Mass. 2002) (noting that the petitioner had "failed to demonstrate

that an appeal following conviction on the armed robbery charges

would not be adequate").8 Since the date of that ruling, the

petitioner has done nothing further to exhaust this due process

claim in the state courts. The state courts, therefore, have not

had an appropriate opportunity to adjudicate the claim.

Accordingly, we affirm the district court's determination that the

petitioner's procedural due process claim is unexhausted. See 28

U.S.C. § 2254(c) ("An applicant shall not be deemed to have

exhausted the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented."); cf. Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820

(1st Cir. 1988) (requiring that "one who seeks to invoke the

federal habeas power must fairly present — or do his best to

present — the issue to the state's highest tribunal").

III. CONCLUSION

We need go no further. The petitioner, ably represented

before us by appointed counsel, has raised difficult issues. In
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the end, however, he cannot prevail. Although we agree that his

guilty plea to the armed robbery charge did not render his

application for habeas relief moot, we nonetheless conclude that

the application fails on the merits.

The district court's order of September 12, 2002 is

vacated. The district court's order of July 30, 2002 is

reinstated. The judgment in favor of the respondent is affirmed.