Melton v. Russo ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2688
LAJUAN MELTON,
Petitioner-Appellant,
v.
LOIS RUSSO, et al.,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
*
Farris and Boudin, Circuit Judges.
Anne E. Gowen for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
appellee.
April 23, 2009
*
Of the Ninth Circuit, sitting by designation.
FARRIS, Circuit Judge. Lajuan Melton appeals the
district court’s denial of his petition for habeas corpus for
failure to exhaust a claim pursuant to 28 U.S.C. § 2254(b). We
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
A claim that appears for the first time on discretionary
review before a state’s highest court does not satisfy the
exhaustion requirement of § 2254(b). Castille v. Peoples, 489 U.S.
346, 351 (1989). Melton argues that he first raised his Sixth
Amendment right to counsel claim on non-discretionary review before
the Massachusetts Appeals Court. This argument fails. Melton’s
brief before the Appeals Court mentioned neither the Sixth
Amendment nor the federal constitutional right to counsel. The
brief’s reference to a constitutional “right to closing argument”
did not present Melton’s Sixth Amendment claim “face-up and
squarely . . . .” Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.
1988). At most, it was a “passing reference” insufficient to
preserve the claim for habeas review. Fortini v. Murphy, 257 F.3d
39, 44 (1st Cir. 2001) (quoting Martens, 836 F.2d at 717). Melton
was no more explicit regarding his Sixth Amendment claim in oral
argument before the Appeals Court than he was in his brief. He has
failed to exhaust the claim pursuant to § 2254(b).
AFFIRMED.
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