Filed: Sep. 30, 2002
Latest Update: Feb. 21, 2020
Summary: State v. Toro, 684 A.2d 1147 (R.I.the Rhode Island Supreme Court.2, It is undisputed that the petitioner's trial attorney, objected to the omission of a self-defense instruction at the, conclusion of the court's charge and orally requested that the, court give a self-defense instruction.
[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2478
EDSON TORO,
Petitioner, Appellant,
v.
ASHBEL T. WALL, DIRECTOR, DEP'T OF CORRECTIONS,
STATE OF RHODE ISLAND,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
[Hon. Robert W. Lovegreen, U.S. Magistrate Judge]
Before
Selya, Lynch, and Lipez,
Circuit Judges.
Larry J. Ritchie, by appointment of the court, for petitioner.
Aaron L. Weisman, Assistant Attorney General, with whom
Sheldon Whitehouse, Attorney General, was on brief, for respondent.
September 27, 2002
Per Curiam. On July 14, 1994, petitioner-appellant Edson
Toro was convicted in Providence County Superior Court of assault
with intent to commit murder. See R.I. Gen. Laws § 11-5-1. The
court sentenced Toro to serve an incarcerative term of ten years.1
On direct appeal, the Rhode Island Supreme Court affirmed his
conviction. State v. Toro, 684 A.2d 1147 (R.I. 1996). One of the
issues raised during that appeal related to the trial justice's
failure to give a jury instruction on self-defense. The state
supreme court found the issue to be forfeited because a self-
defense instruction had not been requested in writing as required
by Rule 30 of the Rhode Island Rules of Criminal Procedure. See
id. at 1149.
The petitioner then filed an application for post-
conviction relief in the state superior court. In that
application, he questioned not only the trial justice's refusal to
instruct the jury on self-defense but also whether he had received
effective assistance of counsel. The trial justice denied the
application on March 9, 2000, and the petitioner again appealed to
the Rhode Island Supreme Court.
1
The petitioner has completed service of that sentence, but he
is still imprisoned on other charges. His habeas petition is not
moot, however, because the underlying conviction has collateral
consequences in respect to his continuing incarceration. See,
e.g., Carafas v. LaVellee, 391 U.S. 234, 237 (1968); United States
v. Gallo,
20 F.3d 7, 11 (1st Cir. 1994).
2
While that appeal was pending, the petitioner
simultaneously sought a writ of habeas corpus in the United States
District Court for the District of Rhode Island. See 28 U.S.C. §
2254. The issues raised included an alleged denial of due process
arising out of the trial justice's refusal to instruct the jury on
self-defense (thus foreclosing the petitioner from pursuing a valid
theory of defense). After certain preliminary skirmishing, not
relevant here — among other things, the district court
appropriately required the petitioner to drop unexhausted claims
(such as his claim of ineffective assistance of counsel) before
proceeding further — a magistrate judge filed a report and
recommendation suggesting that the habeas petition be denied. Toro
v. Wall, C.A. No. 00-561, magistrate's report and recommendation
(D.R.I. Sept. 12, 2001). The gravamen of the recommendation was
the magistrate judge's conclusion that the state supreme court's
determination of procedural default constituted an independent and
adequate state ground of decision, not susceptible to federal
habeas review. See id. at 8-9. In due course, the district court
entered an order accepting the report, approving the
recommendation, and dismissing the habeas petition. Toro v. Wall,
C.A. No. 00-561 (D.R.I. Oct. 1, 2001).
On October 22, 2001, the scene shifted back to the state
courts. On that date, the Rhode Island Supreme Court remanded the
petitioner's application for post-conviction relief to the trial
3
justice for an evidentiary hearing. State v. Toro, 785 A.2d 568
(R.I. 2001) (per curiam). That hearing was held in June of 2002,
and the matter is currently under advisement in the state superior
court.
Notwithstanding his victory before the state supreme
court, the petitioner continued to proceed on parallel fronts. He
asked the federal district court for a certificate of
appealability, 28 U.S.C. § 2253, and the district court granted one
on November 9, 2001. The petitioner pressed his federal habeas
appeal and, on March 29, 2002, this court granted a supplementary
certificate of appealability and specified various issues, mainly
regarding procedural default, that it wished the parties to
address. We also issued a briefing schedule and appointed counsel
for the petitioner.
On September 12, 2002, we heard oral argument. We
explored with counsel the petitioner's central allegation: that
his trial attorney had not requested a self-defense instruction in
writing because the trial justice, at the charge conference, had
assured the attorney that he would instruct the jury on self-
defense.2 The assistant attorney general representing the state
candidly conceded that "the appropriate disposition" of this appeal
2
It is undisputed that the petitioner's trial attorney
objected to the omission of a self-defense instruction at the
conclusion of the court's charge and orally requested that the
court give a self-defense instruction. The objection and request
both occurred before the jury had retired to deliberate.
4
was the entry of an order vacating the dismissal and "sending this
[matter] back to the district court for a factual determination
about whether the [trial justice's misleading statement] took
place."3
We need go no further. The state's point is well taken,
and the prosecutor's concession makes it apparent that the appeal
cannot (or, at least, should not) be decided without further
factfinding. Accordingly, we vacate the order appealed from and
remand the matter to the district court to (1) conduct an
evidentiary hearing with respect to what transpired at the charge
conference in the petitioner's original trial, (2) make the
necessary findings as to whether the petitioner's trial attorney
was misled by the trial justice, and (3) make such other findings
and conclusions, and consider such other issues and arguments, as
may be appropriate under the circumstances. We hasten to add,
however, that the district court may, if it so chooses, await a
reasonably prompt decision from the state courts in order to see if
the state courts, in the course of adjudicating the petitioner's
ineffective assistance of counsel claim, determine whether or not
any misleading conduct took place at the charge conference.
Vacated and remanded.
3
The assistant attorney general explained that if "there
appears to have been what we are describing as sandbagging, that
would be cause and prejudice" sufficient to overcome the procedural
default. See Bousley v. United States, 523 U.S. 614, 615 (1998)
(describing "cause" and "prejudice" standards).
5
