United States Court of Appeals
                       For the First Circuit

No. 09-1060

                          ALFRED P. FUSI,

                       Petitioner, Appellant,

                                 v.

                          STEVEN O’BRIEN,

                       Respondent, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Nathaniel J. Gorton, U.S. District Judge]


                               Before

                    Boudin, Selya, and Gajarsa,*
                          Circuit Judges.



     Bernard Grossberg for appellant.
     Jessica V. Barnett, Assistant Attorney General,        Criminal
Bureau, Appeals Division, with whom Martha Coakley,         Attorney
General, was on brief, for appellee.


                         September 16, 2010




     *
         Of the Federal Circuit, sitting by designation.
           GAJARSA, Circuit Judge.      Petitioner Alfred Fusi (“Fusi”)

appeals from the United States District Court for the District of

Massachusetts’ denial of his petition for a writ of habeas corpus

and request for an evidentiary hearing.           See Fusi v. O’Brien,

(D. Mass. 2008).      In his habeas petition, Fusi

alleged that he was denied his Sixth Amendment right to effective

assistance of counsel because his trial counsel failed to prepare

for   trial.   Because   Fusi   failed    to   exhaust   his   ineffective

assistance of counsel claim in state court, the district court

should have dismissed his petition without prejudice.

                                  I.

           On February 17, 1984, Fusi was convicted in Essex County

Superior Court of rape in violation of chapter 265, section 22B of

Massachusetts General Laws. Fusi was sentenced to a prison term of

fifteen to twenty years.    Fusi’s sentence was to begin after he

finished serving time for a previous conviction.

           The district court cogently and aptly described the

circumstances surrounding Fusi’s conviction and the performance of

his initial trial counsel, Richard Chambers, as follows:

      Fusi's prosecution arose out of an incident that occurred
      on the evening of September 11, 1981. The alleged rape
      victim in the case described how she had gone out to two
      bars and consumed five drinks during the evening. At
      about 2:00 a.m., the victim had an argument with her
      boyfriend and decided to take a walk. While walking, she
      passed a man (18 to 20 years old) who said “Hi” as she
      passed him. When she said “Hi” in response, he hit her
      in the jaw, knocking her temporarily unconscious. She


                                  -2-
regained consciousness in a backyard where her assailant
was kneeling on top of her, illuminated from some light
source. She screamed but the man told her he would kill
her if she did not stop screaming and stuffed a bandana
into her mouth.     He proceeded to rape her and then
immediately left the area.
The victim walked out to a road where after a short time,
she saw a friend driving by. The friend stopped and took
her to the police station. Although the victim reported
the assault, she did not make a written statement about
the rape at that time because she felt “out of it” and
wanted to go to the hospital to obtain treatment for her
jaw.
The following day, the victim leafed through a local high
school yearbook to try to give her friends an idea of
what her assailant looked like. She did not notice that
Fusi's photograph appeared in the yearbook four times.
Six days later, the victim returned to the police station
where the police arrayed seven photographs of men
matching her description of the assailant. In less than
one minute, she picked out Fusi as “the man that raped
me”. [sic]    She also positively identified him after
looking at the photographs a second time. At that time
the victim provided the police with a six-page written
statement describing the rape. Approximately one month
later, the victim returned to the police station again
and picked Fusi out from a nine-man line-up in less than
one minute. The victim also positively identified Fusi
as her rapist at his trial.
The strategy Atty. Chambers chose to adopt at Fusi's
trial was one of mis-identification and alibi. To that
end, he cross-examined the Commonwealth's witnesses,
including the victim at length, focusing on the victim's
lack of opportunity to see her assailant and on
discrepancies in her description of him as compared with
his actual appearance, such as 1) her failure to describe
a birth-mark Fusi bears on his cheek, 2) her description
of him as olive-skinned and Italian-looking (whereas he
was very pale-skinned) and 3) her statement that the
assailant weighed considerably less than Fusi actually
weighed.
Atty. Chambers called several witnesses to testify about
Fusi's appearance. He also called Fusi's girlfriend of
six years and a friend of Fusi's to testify that on the
evening in question they were “hanging out” at Fusi's

                          -3-
     home. Fusi's girlfriend testified that Fusi drove her
     home about 1:30 a.m. Fusi's mother testified that she was
     still awake when Fusi returned home about half an hour
     later. She also testified that she went to bed around
     2:20 a.m. and did not hear anyone leave the house for the
     rest of the night. At the conclusion of the trial, the
     judge, addressing Atty. Chambers, stated, “I appreciate
     you worked hard”. [sic] Atty. Chambers did not, however,
     become aware of or cross-examine the victim with respect
     to her six-page, written statement describing the rape
     even though that statement was available for use at trial
     and was inconsistent with the victim's testimony in
     several ways.

.

           At the conclusion of the initial trial, an Essex County

jury found Fusi guilty of rape and his conviction was subsequently

affirmed by the state appellate courts.        Fusi then filed his first

motion for post-conviction relief on April 18, 1984. Fusi’s motion

alleged that the jury improperly considered his failure to testify

at trial as evidence of guilt.       Atty. Chambers represented Fusi

during this first motion.        The motion was denied after a non-

evidentiary hearing.

           Fusi, with the assistance of new counsel, then filed a

second motion for post-conviction relief on December 12, 1985.

Fusi’s new counsel argued that Fusi was entitled to a new trial on

several   grounds,   including   ineffective    assistance   of   counsel.

Specifically, Fusi alleged that Atty. Chambers provided ineffective

assistance of counsel by, inter alia, failing to interview and call

prospective witnesses.     An evidentiary hearing was held and the

motion was denied.    Fusi appealed, but narrowed his allegations of



                                   -4-
error and no longer argued that Atty. Chambers provided ineffective

assistance    of   counsel.      The    Massachusetts    Appeals   Court

subsequently affirmed the trial court’s denial.         See Commonwealth

v. Fusi, 517 N.E. 2d 1303(1988) (Table).         Fusi appealed to the

Supreme Judicial Court (“SJC”), which denied leave to purse further

appellate review.      See Commonwealth v. Fusi, 

(1988) (Table).

              Fusi then filed a third motion for post-conviction

relief on June 1, 1989.       The third motion argued that the grand

jury process had been impaired and that Atty. Chambers’ failure to

object to the grand jury process constituted ineffective assistance

of counsel.    Following a non-evidentiary hearing, the trial court

denied the motion.   Fusi appealed and his appeal was denied by the

Massachusetts Appeals Court and the SJC. See Commonwealth v. Fusi,

(1990) (Table); Commonwealth v. Fusi, 

(1990) (Table).

          Fusi’s fourth motion for post-conviction relief was filed

on November 17, 1995.     In the fourth motion, Fusi again alleged

that Atty. Chambers provided ineffective assistance of counsel,

this time due to his failure to object to alleged sentencing

errors.   After a non-evidentiary hearing, the trial court denied

Fusi’s request for a new trial, but ordered a new sentencing

hearing due to Atty. Chambers’ failure to adequately represent Fusi

during sentencing. Following the new sentencing hearing, the trial


                                  -5-
court reimposed the original sentence.           Fusi appealed, but the

appeal was dismissed for failure to prosecute.

          On March 3, 2003, Fusi filed his fifth motion for post-

conviction relief asserting several grounds, including ineffective

assistance of counsel.     With his motion, Fusi provided the trial

court with an affidavit from now-disbarred Atty. Chambers in which

Atty. Chambers admitted that (1) he received Fusi’s case two days

prior to trial and (2) he visited the crime scene, but never spoke

with Leonard and Cathleen Bartolo, whose backyard was the crime

scene and who Fusi stated would contradict some of the victim’s

testimony concerning the light in the Bartolos’s backyard and

whether she screamed on the night of the rape.           Relying on Atty.

Chambers’ affidavit and affidavits from his mother and sister, Fusi

argued that he was deprived of his Sixth Amendment right to the

effective assistance of counsel because Atty. Chambers did not

adequately prepare for trial.

          The trial court denied Fusi’s motion.          Fusi appealed to

the   Massachusetts    Appeals      Court,   which   found   no   “manifest

injustice”   and   affirmed   the    trial   court’s   ruling.     Fusi   v.

Commonwealth, 

, *1-2 (2006) (Table).               The SJC

subsequently denied Fusi’s Application for Leave to Obtain Further

Appellate Review (“ALOFAR”).         Commonwealth v. Fusi, 

(2006) (Table).




                                     -6-
               Fusi continued his quest for a constitutional remedy by

filing a habeas petition in federal district court. To support his

habeas petition, Fusi requested an evidentiary hearing.                               In the

motion for an evidentiary hearing, Fusi argued that because Atty.

Chambers completely failed to prepare for trial a presumption of

prejudicial ineffective assistance of counsel was warranted.

               After hearing oral arguments on the motion, the district

court issued an order denying both the request for an evidentiary

hearing and the habeas petition.                  

.

The    district          court    implicitly      denied     Fusi’s       request     for     a

presumption of prejudice and held that Fusi’s allegations, even if

accepted as true, created at best a “close call” on the issue of

prejudice.          

    court    then    held    that     Fusi’s

allegations         “do    not     overcome    the   deference          afforded    by    [the

Antiterrorism and Effective Death Penalty Act] to the state courts’

determination that he failed to establish prejudicial ineffective

assistance of counsel.”                

      Accordingly, Fusi was not

entitled to either an evidentiary hearing or a writ of habeas

corpus.    

        Fusi    applied      for     a     Certificate         of

Appealability.            In the application, Fusi, relying primarily on the

Sixth   Circuit’s          decision     in    Mitchell      v.    Mason,    

(6th    Cir.    2003),       again      asserted     that    he    was     entitled      to   a

presumption         of    prejudicial        ineffective     assistance       of    counsel


                                              -7-
because of Atty. Chambers’ alleged failure to prepare for trial.

The district court granted the Certificate of Appealability, Fusi

v. O’Brien, 

(D. Mass. 2009), and this appeal

followed.

                                     II.
            The critical issue on appeal is whether Fusi fully

exhausted his ineffective assistance of counsel claim in state

court. In order to promote principles of comity and federalism, “a

federal court will not entertain an application for habeas relief

unless the petitioner first has fully exhausted his state remedies

in   respect    to    each   and   every   claim   contained   within    the

application.”        Adelson v. DiPaola, 

, 261 (1st Cir.

1997).   The doctrine of exhaustion traces its origins to the 19th

century, Ex parte Royall, 

, 251 (1886), and was

codified by Congress in 1948, 62 Stat. 967.

            The Supreme Court has explicated that “[t]he exhaustion

doctrine is principally designed to protect the state courts’ role

in the enforcement of federal law and prevent disruption of state

judicial proceedings.”       Rose v. Lundy, 

, 518 (1982).

Given their co-equal status in our federal structure, the doctrine

ensures that state courts are afforded an adequate opportunity to

adjudicate      constitutional      claims     properly    within       their

jurisdiction.    See Darr v. Burford, 

, 204 (1950).          The

doctrine also finds support in a “pragmatic recognition that


                                     -8-
‘federal claims that have been fully exhausted in state courts will

more often be accompanied by a complete factual record to aid the

federal courts in their review.’” Castille v. Peoples, 

, 349 (1989) (quoting 

).

            In the First Circuit, “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 [his] federal claim.”

(alterations added); Scarpa v. Dubois, 

, 6 (1st Cir. 1994).          The petitioner’s ALOFAR is the

“decisive pleading” and the federal claim must be presented to the

state’s highest court within the four corners of the ALOFAR.

; Mele v. Fitchburg Dist. Court, 

, 823 (1st Cir. 1988).      Earlier state court filings, however,

provide a “backdrop” against which the ALOFAR can be read if it is

ambiguous. See Clements v. Maloney, 

, 163-64 (1st Cir.

2007).

            Before the district court, Fusi argued that he was

entitled to a writ of habeas corpus because he was denied the

effective    assistance   of   counsel   in   violation   of   the   Sixth

Amendment.    In Strickland v. Washington, 

(1984), the

Supreme Court established the standard test for determining whether

a defendant’s Sixth Amendment right to counsel was violated. Under

the Strickland test, a defendant must demonstrate that “counsel’s

representation fell below an objective standard of reasonableness”

                                   -9-
and   “a    reasonable       probability      that,     but    for        counsel’s

unprofessional errors, the result of the proceeding would have been

different.”      

694.    On the same day that Strickland was

issued,    the    Supreme    Court   issued    United    States      v.    Cronic,

(1984), another case concerning the scope of the Sixth

Amendment’s right to counsel.         In Cronic, the Supreme Court held

that there are “circumstances that are so likely to prejudice the

accused that the cost of litigating their effect in a particular

case is unjustified.” 

In these limited circumstances,

prejudice   is    presumed    “without   inquiry      into    counsel’s      actual

performance at trial.”       

            While both Cronic and Strickland concern Sixth Amendment

violations, they are distinct legal claims and the difference

between the two “is not of degree but of kind.”                  Bell v. Cone,

, 697 (2002).            Strickland requires a case-by-case

analysis of whether counsel’s deficiencies affected the outcome of

a trial, while Cronic permits a presumption of prejudice if an

actual or constructive denial of counsel occurs during a critical

stage of the trial.      These claims, while based on similar factual

underpinnings, are separate and distinct.             A defendant’s reliance

on one theory in state court does not exhaust the other.                       See

Huntley v. McGrath, 261 F. App’x. 4, 6 (9th Cir. 2007) (finding

Cronic claim unexhausted when defendant only raised Strickland




                                     -10-
claim in state courts); Higgins v. Cain, No. 09-2330, 

, *6-7 (E.D. La. Feb. 8, 2010) (same).

          In   his   habeas    petition,   Fusi   argued   that   a   Cronic

presumption of prejudice was warranted because Atty. Chambers’

failure to prepare adequately for trial effectively denied Fusi any

counsel during the critical, pre-trial stage of the criminal

proceeding. See 

(identifying the “complete

denial of counsel” as a circumstance warranting the presumption of

prejudice).    For support, Fusi relied primarily on Mitchell v.

Mason, a case in which the Sixth Circuit held that an attorney’s

complete failure to prepare for trial should be analyzed under

Cronic, not Strickland.       See 

.

          The relevant question on appeal is whether Fusi presented

to the SJC his argument that Cronic, not Strickland, applies to his

claim of ineffective assistance of counsel. A close examination of

Fusi’s ALOFAR reveals not a single citation to Cronic or the Sixth

Circuit’s decision in Mitchell v. Mason.            Instead, the ALOFAR

relies exclusively upon the standard two-prong Strickland test,

specifically citing that Supreme Court case five times. Instead of

arguing for a presumption of prejudice, the ALOFAR argues at length

that Atty. Chambers’ deficient assistance caused actual prejudice.

At no point does the ALOFAR argue or even imply that Fusi was

entitled to a presumption of prejudice. Accordingly, the “decisive




                                   -11-
pleading” in this appeal establishes that Fusi did not raise his

Cronic claim in state court.

          Moreover, Fusi’s previous state court filings also did

not raise his Cronic claim.        In his brief to the Massachusetts

Appeals Court, Fusi relied exclusively on Strickland’s two-prong

test.   Indeed,     the   brief   specifically    mentions   Strickland’s

prejudice prong and argues that Atty. Chambers caused actual

prejudice.   Additionally, in his initial brief to the trial court,

Fusi again relied exclusively on Strickland, quoted the case at

length throughout the brief, and argued that Atty. Chambers caused

actual prejudice.   While we find no ambiguity in the ALOFAR, to the

extent any did exist, the backdrop against which we read the ALOFAR

bolsters our conclusion that Fusi did not raise his Cronic claim in

state court.

          At most, Fusi’s state court filings establish the factual

predicate for his Cronic claim, “[b]ut setting forth the factual

underpinnings of a claim is insufficient, in and of itself, to

constitute fair presentment of that claim.           A habeas petitioner

must also elucidate the legal foundation of his federal claim.”

.         Fusi failed to elucidate any legal

foundation for his Cronic claim in state court.

          For the foregoing reasons, Fusi failed to exhaust fully

his Cronic claim before the state court.         Thus, the district court



                                   -12-
should have dismissed his petition for a writ of habeas corpus

without prejudice.

                                   III.

          Fusi’s failure to rely upon Cronic in state court is

fatal to his habeas petition.         Had Fusi exhausted his claim,

however, he would still face a rocky slope on his constitutionally

premised appeal given this circuit’s hesitance to apply Cronic’s

presumption of prejudice to situations of “bad lawyering.”            See,

e.g., United States v. Theodore, 

, 56-58 (1st Cir.

2006); 

.       This circuit has made clear that

“seldom [do] circumstances arise that justify a court in presuming

prejudice (and, concomitantly, in forgoing particularized inquiry

into whether a denial of counsel undermined the reliability of a

judgment).”     Ellis v. United States, 

, 643 (1st Cir.

2002).   With respect to an incompetent attorney, the attorney’s

incompetence must rise to the level of a complete denial of

counsel; “bad lawyering, regardless of how bad” is insufficient.

(quoting McInerney v. Puckett, 

,

352-53 (5th Cir. 1990)).

          Supreme Court precedent dictates our narrow application

of the Cronic presumption of prejudice.           In Cronic, the Court

identified     three   specific   circumstances    that   warranted    the

presumption.     

.         The first   and “most

obvious” is a “complete denial of counsel . . . at a critical

                                   -13-
stage.”   

     The second occurs “if counsel entirely fails

to   subject    the    prosecution’s   case   to   meaningful   adversarial

testing.”      

third occurs when the circumstances are

such that “even a fully competent [attorney], could [not] provide

effective assistance of counsel.”          

     Circumstances

falling into the third category include the appointment of counsel

“so close upon trial as to amount to a denial of effective and

substantial aid.”       

(quoting Powell v. Alabama, 

, 53 (1932)).

            Turning to the merits of Cronic’s petition, the Court

held that the circumstances surrounding his conviction did not

warrant a presumption of prejudice.        

The Court refused

to presume prejudice despite the fact that the charged offense was

a complicated mail fraud scheme and the defense attorney was

appointed twenty-five days prior to trial, had no criminal law

experience, and never tried a jury case before.          

the Court, these facts “are relevant to an evaluation of a lawyer’s

effectiveness in a particular case, but neither separately nor in

combination do they provide a basis for” presuming prejudice.           

            Since issuing Cronic, the Supreme Court has consistently

declined invitations to interpret the case expansively. In Bell v.

Cone, the defense attorney, during sentencing in a capital case,

established that the defendant was a war veteran who received the

                                    -14-
Bronze   Star   and    potentially     suffered   from   Vietnam    Veterans

Syndrome.    

.         The defense attorney also

successfully    objected    to   the    introduction     of   the   victims’

photographs, but “he did not interview witnesses aside from those

relevant to the guilt phase; he did not present testimony relevant

to mitigation from the witnesses who were available; and he made no

plea for [the defendant’s] life or closing remarks after the

State’s.”    

(Stevens, J., dissenting).            Despite these

failings, the Court held that the defendant was not entitled to a

presumption of prejudice because the attorney did not entirely fail

to subject the prosecution’s case to adversarial testing.            See 

(majority op.).

            Two years later, in Florida v. Nixon, 

, 178

(2004), the Supreme Court again refused to presume prejudice. This

time the defense counsel conceded the defendant’s guilt during

trial without the defendant’s express consent.            In holding that

such conduct did not warrant a presumption of prejudice, the Court

described Cronic as a “narrow exception” to Strickland that should

be applied “infrequently.”       

            Following the Supreme Court’s instructions, this circuit

has been reluctant to apply Cronic broadly.         Importantly, we have

not presumed prejudice in situations strikingly similar to the one

before us today.      For example, in Scarpa, we considered whether to

apply the Cronic presumption to a situation where the defense

                                     -15-
attorney       did    not     attempt   to     impeach       government        witnesses,

effectively conceded the disputed elements of the charged crimes,

and    whose    closing      argument    solicited        the   jury    to     accept   the

government’s 

. We described the defense

attorney’s legal theory as “half-baked” and his blunders as “not

only    fail[ing]       to    assist    in   fashioning         a    defense    but     also

cement[ing] the prosecution’s theory of the case.”                       

We therefore concluded that the defense attorney’s conduct fell

below an objective standard of reasonableness.                       

               We    did     not,   however,       hold   that       defense    counsel’s

ineptitude warranted a presumption of prejudice.                             Instead, we

recognized that Cronic is a narrow exception to Strickland’s rule

and should only apply to conduct “so antithetic to effective

assistance . . . that a case-by-case analysis simply is not worth

the cost of protracted litigation.”                 

       We also explained

that “attorney error, even when egregious, will almost always

require analysis under Strickland’s prejudice prong.”                          

“Put bluntly, because [defense counsel’s] errors are more an

example    of        maladroit      performance       than      of     non-performance,

Strickland necessitates an inquiry into the existence of actual

prejudice.”         

               More recently, in Theodore we were asked to apply the

Cronic    presumption         to    trial    counsel’s       incompetent        pre-trial

investigation.         In Theodore, we recognized that trial counsel’s

                                            -16-
pre-trial investigation was 

.     While

trial counsel reviewed some documents, he wholly ignored several CD

ROMs that contained all of the government’s evidence.                

also failed to interview any witnesses beyond the defendant

and openly stated that he planed “to play it by ear and shoot from

the hip.”    

counsel’s woefully inadequate preparation,

we refused to presume prejudice because while the “representation

of [the defendant] suffered significant shortcomings, it was not

tantamount to non-representation.”             

        Trial counsel

reviewed boxes of documents, requested copies of relevant documents

from the government, filed pretrial motions, and exercised several

peremptory challenges.        

     During trial, counsel cross-

examined    government      witnesses,    suggested     defense    themes,   and

introduced exhibits.        

   This conduct, while still below

an objective level of reasonableness, “was not so deficient that

[the   defendant]    should    have    been   relieved    from    demonstrating

prejudice under Strickland.”          

            Like    the    attorneys     in   Scarpa    and   Theodore,    Atty.

Chambers’ performance may have fallen below an objective standard

of reasonableness, but was not of the character as to constitute

constructive denial of counsel “justify[ing] a presumption that

[the defendant’s] conviction was insufficiently reliable to satisfy

the Constitution.”        

.      In the affidavit that

                                       -17-
Fusi submitted with his habeas petition, Atty. Chambers stated that

prior to trial he reviewed the Commonwealth’s discovery file, the

indictment,      the   grand   jury     minutes,   and    the   police    report.

Atty. Chambers also stated that he interviewed Fusi’s sister and

mother prior to trial, interviewed Fusi on the day of trial, and

visited the crime scene. Although Atty. Chambers received the case

only two days prior to trial and admitted he would be “shooting

from   the    hip,”    he   provided    Fusi    with    some,   albeit   limited,

representation thereby precluding a presumption of prejudice under

Cronic.      Fusi may have retained a bad lawyer; he was not, however,

denied counsel.

              We take no view as to whether Mitchell v. Mason was

correctly decided.          We do note, however, that the Sixth Circuit

opinion does not dissuade us from our present conclusion.                      In

Mitchell, the defense counsel in a capital case met with the

defendant for only six minutes spread over three meetings prior to

trial, failed to contact or interview known material witnesses,

ignored the defendant’s repeated requests for consultation, and was

suspended from the practice of law for the thirty days preceding

trial.       

     The Sixth Circuit concluded that the

defense counsel was “utterly absent” during the pre-trial stages of

the    criminal    proceeding     and    held    that    Cronic,   rather    than

Strickland, should apply to the defendant’s ineffective assistance

of counsel claim.       

                                        -18-
              In this case, unlike in Mitchell, there is evidence that

Atty. Chambers performed something more than a minim of work during

the     pre-trial    phase.         As    noted   above,   he   reviewed    the

Commonwealth’s evidence, the indictment, the grand jury minutes,

and the police report; he visited the crime scene; he met with

Fusi’s sister and mother; and he met with Fusi on the day of trial.

These facts distinguish this case from Mitchell in which the

defense attorney did nothing prior to trial and was not licensed to

practice law the entire month preceding trial.             Unfortunately for

Fusi,    he    was   not   denied    counsel,     either   constructively   or

otherwise.      The Constitution requires representation of counsel,

but it does not mandate representation by the equal of Clarence

Darrow.

              Accordingly, had Fusi exhausted his Cronic claim in the

state courts, his claim would fail on its merits.
                                         IV.
              For the foregoing reasons, we VACATE and REMAND with

instructions to dismiss Fusi’s petition for a writ of habeas corpus

without prejudice. Each party to bear their own costs.




                                         -19-