               Not for Publication in West’s Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 02-2080

                          NORMAN M. SILVIA,

                       Petitioner, Appellant,

                                     v.

                             TIMOTHY HALL,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Robert E. Keeton, U.S. District Judge]


                              Before
                      Selya, Lipez and Howard,
                          Circuit Judges.




     Norman M. Silvia       on    Application       for    a   Certificate   of
Appealability pro se.



                             June 10, 2003
     Per       Curiam.   Norman     M.   Silvia     seeks    a   certificate   of

appealability ("COA") to appeal from the denial of his petition

filed pursuant to 28 U.S.C. § 2254.             Specifically, he seeks a COA

to appeal from the denial of habeas relief on the following

constitutional grounds: 1) ineffective assistance of trial counsel

for failure to pursue an insanity defense; 2) abuse of discretion

by the Massachusetts trial court, in violation of petitioner's

Sixth Amendment rights, for denying without a hearing his motion to

substitute court-appointed counsel; and 3) ineffective assistance

of appellate counsel for failure to assert a claim of ineffective

assistance of trial counsel on petitioner's direct appeal.                     We

address each claim separately, applying the standard for granting

a COA under 28 U.S.C. § 2253(c).

I. The COA Standard

     Because the district court reached the merits of petitioner's

claims,    a    COA   may   issue   only   if     the   following   standard   is

satisfied:

     The petitioner must demonstrate that reasonable jurists
     would find the district court's assessment of the
     constitutional claims debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).                However, because the

district court also denied the habeas petition on the alternative

ground of procedural default, a COA may not issue unless petitioner

can also make the following showings:

     that jurists of reason would find it debatable whether
     the petition states a valid claim of the denial of a

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      constitutional right and that jurists of reason would
      find it debatable whether the district court was correct
      in its procedural ruling.

Id.   The Supreme Court has recently reiterated that, at the COA

stage, "the court of appeals should limit its examination to a

threshold inquiry into the underlying merit of [a petitioner's]

claims." Miller-El v. Cockrell, __ U.S. __, 123 S.Ct. 1029, 1034

(2003).

II. Ineffective Assistance of Trial Counsel Claim

      Petitioner claimed that he received ineffective assistance of

counsel   because   his   court-appointed   trial   attorney   failed   to

investigate and pursue "petitioner's only realistic defense:" that

because of a mental impairment he lacked criminal responsibility at

the time of the offense.        Under Massachusetts law, "[l]ack of

criminal responsibility requires the existence of a mental disease

or defect, which causes the defendant to lack the substantial

capacity either to appreciate the wrongfulness of his or her acts,

or to conform his or her conduct to the requirements of the law."

Commonwealth v. Seabrooks, 425 Mass. 507, 515 (1997).

      Applying the federal standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984), the district court assessed the

merits of this claim as follows:

      the record reveals that trial counsel's strategic
      decision not to pursue a defense of diminished capacity
      or mental impairment was an informed and reasonable
      decision.   Trial counsel sought and obtained funds to
      hire a psychiatric expert to examine the petitioner.
      That expert met with petitioner several times, reviewed

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      petitioner's medical history, and interviewed other
      witnesses.     Dr. Meyer concluded that, while the
      petitioner suffered from a mental disease, he did not
      lack criminal responsibility.
           As the United States Court of Appeals for the First
      Circuit has said, "[e]ffectiveness does not require that
      counsel jump through every conceivable hoop or engage in
      futile exercises." United States v. Pellerito, 878 F.2d
      1535, 1540 (1st Cir. 1985). Petitioner's trial counsel
      did, in fact, put on a defense, essentially arguing that
      the petitioner had gone to the victim's house intent on
      committing suicide. In the circumstances of this case,
      this was not ineffective assistance of counsel.

      We   conclude   that   reasonable      jurists   could   not   find   the

district court's assessment of this ineffective assistance of

counsel claim debatable or wrong. Nothing in the record, including

the affidavits of witnesses (the victim and petitioner's mother)

whom petitioner faults his trial counsel for failing to interview,

supports a finding that petitioner was not criminally responsible

at the time of the offense.      Petitioner suggests that counsel was

deficient in not obtaining his medical records from psychiatric

counseling and treatment he had undergone in the years leading up

to the offense.       However, the record reveals that those medical

records were among the sources on which defendant's expert relied

as   did   the   psychologist   from    Bridgewater    State   Hospital     who

prepared the Aid to Sentencing Evaluation.             Both reports reached

conclusions about petitioner's psychological health which were

incompatible with a finding that he lacked criminal responsibility.

Given the dearth of evidence that petitioner had summoned to

support such a defense, reasonable jurists could not debate the


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district court's assessment that trial counsel's failure to pursue

that defense did not constitute ineffective assistance of counsel.

III.   Sixth   Amendment   Claim   for   Failure   to   Grant   Motion   for

Continuance and Appointment of New Trial Counsel

       Petitioner claimed that the trial court abused its discretion,

in violation of petitioner's Sixth Amendment rights, by "fail[ing]

to make adequate inquiry into petitioner's complaint that conflict

between petitioner and his counsel was so great that it resulted in

total lack of communication preventing adequate defense." § 2254

Petition. In denying § 2254 relief on procedural default grounds,

the district court ruled as follows:

            Petitioner's remaining claim, that the trial court
       abused its discretion by denying petitioner's request for
       the appointment of new counsel before the trial is also
       procedurally defaulted.    The Appeals Court determined
       that petitioner had waived this claim, and reviewed it
       only to determine whether the denial of the motion for
       new counsel created a substantial risk of miscarriage of
       justice.
            Petitioner has made no showing that would excuse
       this default.    Although this court could review the
       defaulted claim if refusing to do so would result in a
       miscarriage of justice, that risk is not present in this
       case. The United States Court of Appeals for the First
       Circuit has called this an exception "seldom to be used,
       and explicitly tied to a showing of actual innocence."
       Burks v. DuBois, 55 F.3d 712, 717 (1st Cir. 1995). In
       this case, petitioner makes no claim of actual innocence,
       arguing instead that his attorney should have put forth
       a diminished capacity defense. This is not the type of
       claim that risks a miscarriage of justice, and the claim
       is therefore barred from collateral review by this court.

       Reasonable jurists would not find it debatable whether the

district court was correct in this procedural ruling.           "A finding


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by a state court that a defendant procedurally defaulted a claim

bars federal    habeas   corpus   relief   on    that   claim   unless    that

defendant as a petitioner shows either cause for the default and

prejudice from the claimed violation of federal law, or that a

fundamental miscarriage of justice would result if the claim is not

considered. Coleman v. Thompson, 501 U.S. 722, 750 (1991)." Gunter

v. Maloney, 291 F.3d 74, 78 (1st Cir. 2002).

     The record reveals that Silvia first raised this claim in his

motion for a new trial.      The superior court held that the claim

"could have been raised on appeal but [was] not" and, therefore,

was waived. The Appeals Court agreed.           Therefore, federal habeas

corpus relief     was   barred   unless   Silvia   could   show   cause    and

prejudice.   However, in none of his habeas filings did Silvia even

allege cause to excuse the procedural default of this claim or

prejudice from the claimed Sixth Amendment violation. Nor does the

record provide support for such showings. Reasonable jurists could

not debate the correctness of the district court's ruling that

habeas relief was precluded by the procedural default of this claim

in state court.

IV. Ineffective Assistance of Appellate Counsel Claim

     In this final habeas claim, petitioner faulted his newly-

appointed appellate counsel for failure to raise an ineffective

assistance of trial counsel claim on direct appeal and for advising

him that such a claim should be raised, if at all, in a motion for


                                    -6-
new trial following the appeal.    In his COA request to this court

petitioner maintains that the ineffective assistance of trial

counsel claim that he wanted raised was the claim that he and his

trial attorney "were embroiled in a[n] irreconcilable conflict

throughout the entire proceedings."       However, the record supports

the district   court's   assumption     that   the   claim    he   asked   his

attorney to raise on appeal was an ineffective assistance claim

based on failure to pursue the defense that petitioner was not

criminally responsible.

     Regardless of which of these ineffective assistance claims

petitioner wanted pursued, his attorney's advice that such a claim

should properly be raised, if at all, in a motion for new trial was

consistent with state law. Under Massachusetts law, "[a] claim of

ineffective assistance may be resolved on direct appeal of the

defendant's conviction when the factual basis of the claim appears

indisputably on the trial record." Commonwealth v. Adamides, 37

Mass.App.Ct. 339, 344 (1994)(emphasis added).                Here, however,

appellate counsel correctly concluded that the record before the

Appeals Court contained nothing that would support petitioner's

ineffective assistance of counsel claim.        His advice that a viable

ineffective assistance claim would have to be based upon new facts

"introduced by way of affidavits accompanying a new trial motion"

was consistent with applicable state law. See Commonwealth v.

Burgess, 434 Mass. 307, 317 (2001).       Reasonable jurists could not


                                  -7-
debate the district court's assessment that petitioner was not

entitled   to   habeas   relief   on   his   ineffective   assistance   of

appellate counsel claim.

     Petitioner's request for a COA is denied and the appeal is

terminated.




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