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U.S.C.
to
first
before us,
futile to
exhaust state
state
remedies.1
He
argues
conviction in the
Ouimette,
postconviction
review his
sought and
courts prior
collateral proceedings to
was denied
postconviction redress
to successfully
receiving habeas
in the
relief in
federal
court.
____________________
1 Section 2254(b) & (c) of Title 28 provide:
(b)
An application for a writ of
habeas corpus in behalf of a person in
custody pursuant to the judgment of a
State court shall not be granted unless
it appears that
the applicant
has
exhausted the remedies available in the
courts of the State, or that there is
either an absence of available State
corrective process or the existence of
circumstances rendering such
process
ineffective to protect the rights of the
prisoner.
(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.
28 U.S.C.
2254(b), (c).
2
aff'd, 942
_____
1991).
The district
court decided
that
the futility
requirement
convicted
exception to
testimony.
the section
Byrnes since he
substantive
crimes
dismissal
Byrnes'
state
different
find no error
of
2254(b) exhaustion
conviction
We
habeas corpus
participation
Island.
Nine masked
men entered
this commercial
safe-
(R.I.
1981).2
in the federal
forum by
____________________
2The reader who wishes
to delve into the historical
background of the matter on appeal is referred to this
court's opinion in Ouimette v. Moran, 942 F.2d 1 (1st Cir.
__________________
1991), where we upheld the district court's grant of habeas
relief to codefendant John F. Ouimette, Ouimette v. Moran,
_________________
762 F.Supp. 468 (D.R.I. 1991), as well as to the opinion of
the Rhode Island Supreme Court which affirmed appellant's
state court conviction. State v. Byrnes, 433 A.2d 658 (R.I.
_______________
1981).
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state remedies.
He claims
Brady v. Maryland,
__________________
373 U.S.
83
(1963).
Ouimette, 762
________
record
confirmed by us
developed
by
the
district
court
and
robbery.
robbery.
before
claim
Byrnes.
He
Ouimette
was convicted
the fact.
was
was not
that of
Byrnes,
The
as a
participant in
conspirator and
testimony that
Robert Dussault,
in
contrast,
the
was
an accessory
brought about
and
he did
convicted
actual
the Brady
_____
not implicate
as
an
actual
Anthony Danese.
Clearly, the
evidence at
the same.
Byrnes v.
__________
Byrnes also
especially after
Ouimette,
________
the
conceded during
federal court
oral argument
habeas decisions
in
the effect
state
prosecutor's
Notwithstanding, petitioner's
that because
conduct,
of the egregious
it
would
be
argument
nature of
futile
to
the
subject
-44
petitioner
to
further
state
court
proceedings
to
determine
whether
the errors at
doubt."
curiam), the
United States
Supreme Court
beyond a reasonable
1, 3-4 (1981)
refused to
(per
create an
the defendant's
Court
found that
obscure
constitutional rights
is established.
"obvious constitutional
transgressions, are
subject
errors, no
to the
petition.
Court
favoring
at
4.
exception
to
judicial economy.
The
the
also rejected
exhaustion
the habeas
an
requirement
defendants could
whether
the claim
dispense
with the
noted
that even in
considerations of
the
opportunity,
first
seek a
reached the
exhaustion requirement.
comity require
in
the
872
a clear
of
Finally,
on
petitions,
of
validity to
the Court
violation is found,
first
based
federal determination
requisite level
argument
would likely
less than
requirements of
The
instance,
to
be afforded
correct
Id.
___
1096
(1st
-55
Cir. 1989)
("Requiring
that
remedies
be
exhausted
in
state
courts
is
merely
comity's
think that
petitioner's futility
argument is
foreclosed by
respect
to
the
"egregious"
nature
of
the
Island courts
To the
require
is asking
this
in
the
Duckworth
_________
state judicial
with
respect
forum,
to
we
"clear
think
the reasoning
violations"
is
of
equally
state postconviction
failed to convince us
that recourse to
proceedings available in
Rhode Island
by
codefendant Ouimette.
____________________
3At oral argument, counsel for petitioner suggested that,
based on all that had transpired with respect to this case,
"politics may rear its ugly head" and deny petitioner a fair
opportunity to prosecute his claim in the Rhode Island
courts.
No evidence has been proposed to support this
proposition
and,
accordingly, we
reject petitioner's
suggestion that the Rhode Island courts will not fairly and
impartially discharge their duty of applying the law to the
facts placed before it.
-66
the
issues
Following
court decision,
raised
in
the
our affirmance
the Chief
Justice of
Ouimette
________
of the
to
investigate
prosecutorial misconduct.
same
Court.
Supreme
the
underlying
allegations
of
A report
has been
rendered and
the
adopted by the
insure
court
Ouimette district
________
federal
and
that
with
respect
to
criminal
prosecutions
under
its
(quoting In re Murchison,
_________________
349
U.S.
133,
136
(1955)
this
time,
we
have
no
basis
to
find
that
and fair
We express
sufficiently similar as
to require
the same
legal
result.
Petitioner's dismissal
of his 28 U.S.C.
2254 habeas
-77