Byline: R.I. Lawyers Weekly Staff
Where a Superior Court jury convicted a petitioner of one count of first-degree sexual assault and four counts of second-degree child molestation, his habeas corpus petition should be dismissed because he has failed to exhaust his state court remedies regarding his claims that his trial counsel was ineffective, that prior bad act evidence was erroneously admitted and that the prosecutor made prejudicial statements.
" [Petitioner John] Cavanagh argues: first, that the trial justice abused his discretion by admitting prior bad act testimony from the complaining witness; second, that the prosecutor impermissibly told the jury that Cavanagh had instructed his wife and son not to testify, and that such instruction was not indicative of innocence; third, that the trial justice issued inadequate cautionary instructions concerning the prosecutor's supposedly prejudicial questions and statements; and fourth, that assistance of counsel was ineffective.
"In short, state court remedies are not exhausted where there is a procedural deficiency because the petitioner has failed to run the full course of the normal appellate process, or where there is a formal deficiency because the petitioner has failed to express claims so as to unambiguously invoke the laws, treaties, or Constitution of the United States.
"Unlike his other claims, which were brought before the Rhode Island Supreme Court on direct appeal, Cavanagh first raised the issue of ineffective assistance of counsel in his [post-conviction relief (PCR)] application. ... Although Rhode Island Superior Court has denied Cavanagh's application for PCR, he has yet to ask the Rhode Island Supreme Court for review via a petition for writ of certiorari. ... Since Cavanagh can still appeal the denial of his PCR application under R.I. Gen. Laws 10-9.1-9, he has not exhausted his state court remedies as to these claims.
"Although the other claims in the petition were presented to the Rhode Island Supreme Court on direct appeal, they were not framed so as to expressly signal a controversy concerning the law, treaties, or Constitution of the United States.
"Cavanagh's claim that the trial justice abused his discretion by refusing to exclude prior bad act testimony was predicated on state evidentiary rules, primarily 404(b), and related caselaw. The fact that these rules have...