No. __________
____________________________________________
In The Supreme Court Of The United States
October Term, 2003
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Francesco Campiti,
Petitioner,
v.
James Matesanz,
Respondent,
____________________________________________
Petition For Writ Of Certiorari
To The United States Court Of Appeals For The First Circuit
____________________________________________
Petition For Writ Of Certiorari
____________________________________________
Dana Alan Curhan
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Counsel of Record for the Petitioner
Questions Presented For Review
1. Whether the First Circuit Court of Appeals erred in applying the harmless error rule to a Brady violation where that ruling was contrary to clearly established federal law, as determined by this Court.
2. Whether the First Circuit Court of Appeals erred in refusing to hear the petitioner's claim that he was deprived of his rights under Sixth Amendment because he was not present for his suppression hearing.
A Federal District Court judge denied the petitioner Francesco Campiti's petition for habeas relief pursuant to 28 U.S.C. § 2254 after finding that the prosecution's failure to disclose serious misconduct on the part of one of its investigators during his trial in a Massachusetts state court did not alter the result of the trial. The District Judge also concluded that the petitioner was not deprived of his rights under Sixth Amendment because he was not present for his suppression hearing. The petitioner sought leave to appeal. The District Judge granted a certificate of appealability as to the nondislcosure issue and denied it as to the Sixth Amendment claim. The United States Court of Appeals for the First Circuit denied the petitioner's application for an expanded certificate of appealability, thus refusing to hear the Sixth Amendment claim. The Appeals Court affirmed the judgment of the District Court dismissing the petition for a writ of habeas corpus. The petitioner respectfully prays for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit, entered on June 27, 2003.
The opinion and judgment of the United States Court of Appeals for the First Circuit in Campiti v. Matesanz, 333 F.3d 317 (1st Cir. 2003) is reproduced in the Appendix.
The judgment of the United States Court of Appeals for the First Circuit upholding the District Court judgment was entered on June 27, 2003. This petition is filed within ninety (90) days of that date. The petitioner invokes this Court's jurisdiction under 28 U.S.C. § 1254(1).
28 U.S.C. § 2254 provides as follows:
2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(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.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.
(g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.
Constitutional Provisions Involved
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
The Fourteenth Amendment to the United States Constitution provides, in relevant part:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A. Factual And Procedural History
For purposes of this petition, the petitioner will adopt the recitation of the factual and procedural history as set forth in the opinion of the First Circuit Court of Appeals:
Campiti was convicted in Massachusetts state court in March 1989 of drug trafficking. At trial, two accomplices testified against Campiti. One, Joseph Rego, testified that he traveled three times with Campiti to Florida in 1986 where Campiti acquired in total five kilograms of cocaine for Rego and others to smuggle back to Boston. Joseph Labriola reported three more trips in the same year, with Campiti or at his behest, to bring back multiple kilograms of cocaine to Boston.
At trial, the jury also heard audio tapes in which Campiti was heard to tell associates that he had given out “nine” the previous day, this referring (in the prosecution's view) to nine ounces of cocaine and also advising an associate to “talk in riddles.” The jury also learned of a November 1986 search of Campiti's house and the house of another Campiti associate; the latter yielded 412 grams of cocaine. After the search, the jury was told, Campiti fled to Florida, having altered his features and assumed a false name.
Following his conviction, Campiti was sentenced to five 10-to-15-year terms in prison, four of which were to be served consecutively. By post-trial motion and then in the Massachusetts Appeals Court, Campiti made various claims including the one central to his appeal in this court: that the prosecutor at trial had failed to reveal useful impeachment information concerning John Mace. Mace was a state police officer who had testified against Campiti at trial by supplying, along with another testifying officer, information that laid the background and served to authenticate the audio tapes played at trial.
The impeachment information derived from an event on October 23, 1989, some seven months after Campiti's conviction. That evening, a young prosecutor, returning late to his office, found Mace burning files and was attacked by Mace with a knife. Mace had been burning records to conceal his embezzlement of funds including, it turned out, some funds relating to Campiti's crimes. Mace was convicted of embezzlement in March 1990. In Campiti's post-trial proceedings and appeal, he argued that the underlying embezzlement--known at the time of trial only to Mace--was impeachment evidence that had to be disclosed under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Campiti v. Matesanz, 333 F.3d at 318-319.
On August 7, 1996, the Massachusetts Appeals Court affirmed the petitioner's conviction and the denial of his new trial motion. Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 668 N.E.2d 1308 (1996). The Appeals Court denied his petition for rehearing on February 20, 1997. The Supreme Judicial Court of Massachusetts denied the petitioner's application for further appellate review on October 2, 1996, Commonwealth v. Campiti, 423 Mass. 1107, 671 N.E.2d 951 (1996), and his supplemental application for further appellate review on October 30. 1996. Commonwealth v. Campiti, 423 Mass. 1111, 672 N.E.2d 539 (1996).
On November 24, 1997, the petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C., § 2254 in the United States District Court for the District of Massachusetts (Civil Action No. 97-30263-MAP). The petitioner filed an amended habeas petition on October 20, 1999. The petition and amended petition raised the two issues set forth below.
On February 20, 2002, the District Court (Ponsor, J.) issued an order denying the petitioner's habeas petition. Judgment entered on February 28, 2002. On March 11, 2002, Judge Ponsor entered an order modifying the judgment. On that same date, the petitioner filed a motion for reconsideration of the order denying his habeas petition. On March 23, 2002, Judge Ponsor denied the motion for reconsideration.
On June 18, 2002, Judge Ponsor allowed the petitioner's application and issued a certificate of appealability only as to the issue raised in Argument Section I below. On July 18, 2002, the petitioner filed an application for a certificate of appealability in the First Circuit, asking that the issue raised in Argument Section II below be considered.
On January 7, 2003, the First Circuit denied the application for a certificate of appealability as to the second issue and ordered that the appeal proceed on the COA granted by the District Judge.
On June 27, 2003, the First Circuit issued a decision upholding Judge Ponser's ruling. (Boudin, CJ, Lipez, Howard, JJ.). Campiti v. Matesanz, 333 F.3d 317 (1st Cir. 2003).
B. Basis For Federal Jurisdiction In The Courts Below
The District Court had jurisdiction to hear the petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Appeals Court had jurisdiction over the petitioner's appeal pursuant to 28 U.S.C. § 1291, which vests in the United States Courts of Appeals jurisdiction of appeals from all final decisions of the District Court.
Reasons For Granting The Writ
I. The Court Of Appeals Erred In Applying The Harmless Error Rule To A Brady Violation Where That Ruling Was Contrary To Clearly Established Federal Law, As Determined By This Court
As noted above, the petitioner argued both in the Massachusetts and federal courts that he was entitled to relief from his conviction based on the failure of the police or prosecution to disclose evidence of the misconduct by Lieutenant Mace. The petitioner had made timely requests for disclosure of exculpatory evidence prior to trial and argued that the nondisclosure would likely have changed the outcome of the trial. Both the District Court and the First Circuit Court of Appeals found a Brady violation, but both courts found the error to be harmless. In so ruling, the lower courts acted contrary to clearly established federal law, as recognized by this Court. See 28 U.S.C. § 2254 (d)(1). The petitioner requests that his petition for a writ of habeas corpus be granted with respect to this claim.
“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).
Courts may not apply the harmless error rule to Brady violations. See Kyles v. Whitley, 514 U.S. 419, 435-436, 115 S.Ct. 1555, 1566-1577, 131 L.Ed.2d 490 (1995). See also Singh v. Prunty, 142 F.3d 1157, 1159 n.5 (9th Cir. 1998) (the harmless error rule no longer applies to Brady violations); United States v. Frost, 125 F.3d 346, 383 (6th Cir. 1997) (harmless error doctrine does not apply once a court has found a Brady violation, because a Brady analysis necessarily includes a determination of whether the evidence at issue might have affected the verdict). Notwithstanding this clear mandate, some circuits continue to apply the harmless error rule to Brady violations. See United States v. Walrath, 324 F.3d 966, 169 (8th Cir. 2003) (“A conviction will stand where a Brady violation was 'not prejudicial and amounts to harmless error'”).
As noted above, the First Circuit in its opinion found a Brady violation but then went on to apply the harmless error rule to this case. The First Circuit wrote that even if Mace had confessed his wrongdoing on the witness stand that “would not have altered the result. The audiotapes did not depend on Mace--a second officer also testified--but even if the tapes had been eliminated from the case, two accomplices gave direct evidence against Campiti and, when his home was searched, he fled from the state and assumed a new identity. The outcome was inevitable.” Campiti v. Matesanz, 333 F.3d at 322.
While the testimony of Mace may have been relatively unimportant (as the petitioner has always acknowledged), the testimony of a second police officer, Trooper Higgins, was not. Many of the people who talked on tape spoke in code or made references that were not be readily understood by a lay person. Those tapes were interpreted and explained by Higgins, and his credibility was the key to the jury's acceptance of that evidence. Compare Nuckols v. Gibson, 233 F.3d 1261, 1266-1267 (10th Cir. 2000) (State's failure to disclose that deputy sheriff who allegedly induced defendant's confession had been implicated in thefts at sheriff's office and had participated in sale of guns to fund separate murder with which defendant was charged constituted Brady violation, and thus warranted habeas relief; withheld statements were material, since deputy's credibility was important to establishing admissibility of defendant's confession). Moreover, the testimony of all three troopers who appeared at trial was collectively of great significance to the case. The Commonwealth's main witnesses all had questionable motives, which made the credibility of the police particularly important. Further, much of the electronic evidence used to corroborate the testimony of the main witnesses was somewhat inconclusive. Contrast Crawford v. Head, 311 F.3d 1288, 1329-1331 (11th Cir. 2002) (no reasonable probability that undisclosed Brady material would have changed the outcome of the trial where the scientific and physical evidence was beyond question and was overwhelming). The suggestion that the other investigating officer (and indeed the trial prosecutor) turned a blind eye to Mace's thefts and other misconduct would certainly “undermine[] confidence in the outcome of the trial” and create a reasonable probability of a different result. United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 . Compare Jamison v. Collins, 291 F.3d at 391.
There was thus some significant prejudice to the defense as a result of the nondisclosure. By applying the harmless error analysis, the First Circuit appears to have required that the petitioner demonstrate more than the existence of prejudice-i.e., that the petitioner show with a high degree of certainty that the outcome of the trial would have been different had the evidence been properly disclosed. This Court has held, however, that the credibility of witnesses should be addressed to the fact finder, not the court. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). See also United States v. Lewis, 110 F.3d 417, 422 (7th Cir. 1997) (jury instruction that jurors are the sole judge of the credibility of the witnesses and that they should take into account any interest, bias or prejudice the witnesses might have); United States v. French, 12 F.3d 114, (8th Cir. 1993) (jurors assess the credibility of government witnesses, they can take into account the fact that witness stands to receive sentence reductions in return for their co-operation with the government); Olden v. Kentucky, 488 U.S. 227, 233, 109 S.Ct. 480, 483-484, 102 L.Ed.2d 513 (1988) (Court ruled that it was plain that a reasonable jury might have received a significantly different impression of the witness's credibility had defense counsel been permitted to pursue his proposed line of cross-examination). Where the District Court and the First Circuit decided this case based on assumptions as to how the jury would likely have resolved issues of credibility, the decisions were fatally flawed. The lower courts should have only gone so far as to determine if the case, without the specific evidence, was put in a “different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. at 1566.
Where the First Circuit failed to follow the clear mandate of this Court, and where other circuit courts routinely misapply the rules announced by this Court, granting the instant petition would be appropriate.
II. The Petitioner Was Deprived Of Constitutional Right To Be Present At All Critical Stages Of He Criminal Process Where He Was Not Present For His Suppression Hearing
Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has a right to be present at every critical stage of the proceedings. See United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988). See also Fed. R. Crim. P. 43. Although a defendant's presence is not required at every stage of the criminal process, see Crosby v. United States, 506 U.S. 255, 258-262, 113 S.Ct. 748, 751-753, 122 L.Ed.2d 25 (1993), suppression hearings have been deemed to be critical where the court hears evidence, and a criminal defendant has a constitutional right to be present at such a hearing. See United States v. Hurse, 477 F2.d 31, 33 (8th Cir. 1973), cert. den. 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973). In this case, the trial court refused to hear the petitioner in support of his motion to suppress crucial evidence and instead adopted, in his case, the results of an evidentiary hearing held in his absence. The Massachusetts state courts deprived the petitioner of his constitutional right to be present at all critical stages of the proceedings. The United States District Court, and the First Circuit Court of Appeals should have granted him habeas relief on this basis. The petitioner's request for a writ of certiorari should be granted where the rulings of these courts go against clearly established principles articulated by this Court.
In April of 1986, a Hampden County, Massachusetts grand jury indicted the petitioner on charges of loansharking. On November 17, 1986, the police executed search warrants at the petitioner's house and at two other locations. The petitioner failed to appear for a scheduled conference on December 2, 1986. In January of 1987, a Hampden County grand jury returned indictments on charges of cocaine trafficking against the petitioner and seventeen other defendants. The other defendants agreed that they would file a single motion to suppress the searches based on the illegal use of electronic surveillance against the petitioner. Attorneys for two of the codefendants were selected as lead counsel, and a hearing was conducted on the motion to suppress on March 7-10, 1987. The petitioner was apprehended in Florida in May of 1988. In July of 1988, a Massachusetts Superior Court judge denied the motion to suppress. The judge subsequently denied the petitioner's request for an evidentiary hearing on the motion and adopted the results of the earlier hearing.
In adopting the testimony and result of the codefendants' suppression hearing, which the petitioner did not attend, the trial court effectively denied him his right to be present at every critical stage of the criminal proceedings as guaranteed by the Sixth Amendment. Carter v. Sowders, 5 F.3d 975, 979 (6th Cir. 1993); United States v. Johnson, 859 F.2d at 1294. See also United States v. Hurse, 477 F2.d at 33; Fed. R. Crim. P. 43. “The Confrontation Clause provides two types of protection to the criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). “Both protections are crucial.” Carter v. Sowders, 5 F.3d at 979. See Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988); California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).
In this case, a Magistrate Judge (Neiman, J.) concluded that the petitioner's right to be present at a critical stage of the proceedings was indeed violated. The District Judge ultimately disagreed with that conclusion, in effect, concluding that the presence of the codefendants' counsel adequately protected the petitioner's rights. Even if the violation of the petitioner's right physically to face his accusers is not deemed to be critical, the substitution of counsel for codefendants cannot adequately protect his right to challenge the witnesses through cross-examination. See Green v. Arn, 809 F.2d 1257, 1263 (6th Cir.), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated, 839 F.2d 300 (6th Cir. 1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989) (absence of counsel during examination of witness violated defendant's Sixth Amendment rights even where counsel for two other defendants in the case were present and conducted cross-examination).
The absence the defendant and of his counsel during the taking of evidence at the suppression hearing was “prejudicial per se and justifies an automatic grant of the writ 'without any opportunity for a harmless error inquiry.'” Green v. Arn, 809 F.2d at 1263, quoting Siverson v. O'Leary, 764 F.2d 1208, 1217 & n. 6 (7th Cir. 1985). The petitioner should have been granted habeas relief on this basis, and both the District Court and the First Circuit erred in denying his request for leave to appeal this issue. Certiorari should be granted to address this issue.
III. Conclusion
For the reasons stated above, the writ should be granted and the case set down for argument.
Respectfully submitted,
Francesco Campiti,
By his attorney,
Dana A. Curhan
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
Counsel of Record for the Petitioner
Assisting on the petition:
Brad Bennion, Legal Intern
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