March 3, 1993     UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                           

No. 92-1864

                         THEODIS WATKINS,

                      Petitioner, Appellant,

                                v.

                          JOSEPH PONTE,

                      Respondent, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                  Bownes, Senior Circuit Judge,
                                              

                    and Stahl, Circuit Judge.
                                            

                                           

     Joseph F. Shea, with  whom Nutter, McClennen &amp; Fish,  was on
                                                        
brief for appellant.
     Robert  N. Sikellis,  Assistant  Attorney General,  Criminal
                        
Bureau,  with whom  Scott Harshbarger,  Attorney General,  was on
                                     
brief for appellee.

                                           

                          March 3, 1993
                                           

          TORRUELLA,  Circuit Judge.  Appellant, Theodis Watkins,
                                   

appeals from the district court's dismissal of his petition under

28 U.S.C.   2254.  We affirm.

                              FACTS
                                   

          Watkins was  convicted of  first degree murder  on June

23, 1976 and sentenced to  life in prison.1  In 1979, he  filed a

pro  se petition for a  writ of habeas  corpus ("1979 Petition").
       

The  1979 Petition was  "mixed"; it presented  both exhausted and

unexhausted  claims  for  relief.2   The  magistrate  recommended

dismissal of the  1979 Petition and  the district court  affirmed

after   appellant   failed   to   challenge    the   magistrate's

recommendations within  the prescribed  ten day period.   Watkins

sought a certificate of  probable cause for appeal, Fed.  R. App.

P. 22(b),  on the two claims that had been exhausted.  This court

denied the request and dismissed the appeal.  

          Watkins unsuccessfully pursued  his unexhausted  claims

in state court during the  1980s.  In 1990, he filed  the current

petition  for writ  of habeas  corpus ("1990  Petition") alleging

three  grounds  that  were  not  raised  in  the  1979 Petition.3

                    

1   See Commonwealth v.  Watkins, 373 Mass.  849, 370 N.E.2d  701
                                
(1977), for the facts underlying Watkins' conviction.

2  The 1979  Petition asserted the following grounds  for relief:
(1) failure  to sequester witnesses;  (2) inadequate instructions
on  manslaughter;  (3)  inadequate instructions  on  malice;  (4)
failure to direct a  verdict for Watkins based on  defective jury
charges that shifted the  burden of proof to the  petitioner; (5)
improper confinement  to the dock during  trial.  At the  time of
filing Watkins had only exhausted the first two grounds.

3   The amended  1990 Petition  sought  relief based  on (1)  the
inadequacy of the trial  court's instruction on reasonable doubt;
(2) the inadequacy of the  court's instruction on the distinction
between first and second degree murder; and (3) the inadequacy of

Relying  on  McCleskey  v. Zant,  111  S.  Ct.  1454 (1991),  the
                               

district court dismissed the first two grounds as an abuse of the

writ and ruled against Watkins on the third.  Watkins now appeals

only the  two arguments  dismissed for  abuse  of the  writ.   As

appellant  has failed  to raise  the third  ground on  appeal, we

treat it as waived.  Brown  v. Trustees of Boston Univ., 891 F.2d
                                                       

337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).
                                      

                            DISCUSSION
                                      

          In  McCleskey, the  Supreme Court  used the  cause-and-
                       

prejudice  standard  applicable to  cases of  procedural default,

see, e.g., Wainwright  v. Sykes, 433 U.S.  72 (1977), as part  of
                               

its analysis  of the  problems arising from  successive petitions

for habeas corpus.  The court stated, 

            [t]o  excuse  his  failure  to  raise the
            claim  earlier,  he must  show  cause for
            failing   to   raise  it   and  prejudice
            therefrom  as  those  concepts have  been
            defined   in   our   procedural   default
            decisions.  . .  .  If  petitioner cannot
            show cause, the failure to rise the claim
            in an earlier petition may nonetheless be
            excused  if he  or  she can  show that  a
            fundamental miscarriage  of justice would
            result  from a  failure to  entertain the
            claim.

111 S. Ct. at 1470.  Earlier, in Rose v. Lundy, 455 U.S. 509, 510
                                              

(1982),  the  Supreme  Court  perceived  that  the  multitude  of

piecemeal habeas  petitions unduly burdened  the federal  courts.

Rose  sought  to  consolidate  the  issues  for  appeal  in   one
    

proceeding  in  each  court  system by  establishing  the  "total

                    

the trial court's instruction on malice.

                               -3-

exhaustion"  rule.  But it also preserved immediate access to the

federal  courts  on  exhausted issues,  provided  the  petitioner

consciously  wished to  risk  losing an  opportunity for  federal

review of  other claims.  455  U.S. at 510.   Thus, Rose required
                                                        

that district  courts entertaining mixed  habeas petitions  offer

petitioners an  explicit choice to proceed on exhausted claims or

delay federal review to bring all claims once exhausted.  Id.
                                                             

          The  Commonwealth contends that  Watkins' 1990 Petition

falls  squarely within  McCleskey  because back  in 1979  Watkins
                                 

chose  to appeal only the  two exhausted claims  presented in the

1979 Petition, and, therefore, bore  the "risks [of] dismissal of

[his]  subsequent  federal petition[]"  for  abuse  of the  writ.

Rose, 455  U.S. at  510;  McCleskey, 111  S. Ct.  at  1467.   The
                                   

Commonwealth  argues  further that  Watkins  abused  the writ  by

failing to  assert the  reasonable doubt  and  the second  degree

murder claims in the original 1979 Petition since Watkins did not

allege,  nor could  he, that  he lacked  a substantial  basis for

those claims in 1979.  See McCleskey, 111 S. Ct. at 1468.
                                    

          Watkins counters  that the merits of  the two exhausted

claims  in the 1979 Petition were never properly before the court

of appeals because Watkins was never presented the choice between

dismissal and  continuing only with exhausted  claims as required

by  Rose, 455 U.S.  at 510.   According to Watkins,  the district
        

court  effectively made  the  choice for  him  by dismissing  the

petition  as mixed.   On appeal,  this court  refused to  issue a

certificate  of probable cause  and dismissed the  appeal.  Thus,

                               -4-

argues Watkins, there can  be no abuse because the  1990 Petition

is the first petition properly before the court.

          We  agree with  the Commonwealth  that we  reviewed the

merits  of two exhausted claims in the 1979 Petition.  Watkins v.
                                                              

Callahan, Misc.  No. 80-8063 (1st Cir.  Nov. 20, 1980).   When we
        

decided that appeal, the  Supreme Court's "total exhaustion" rule

of Rose  had not  yet  been decided.    This Circuit,  and  seven
       

others, did not  condition district court review of  mixed habeas

petitions on exhaustion of all state court claims.  See Rose, 455
                                                            

U.S. at 513 n.5 and cases cited therein; Miller v. Hall, 536 F.2d
                                                       

967, 969  (1st Cir. 1976); Katz  v. King, 627 F.2d  568, 574 (1st
                                        

Cir. 1980).   In Niziolek  v. Ashe, 694  F.2d 282, 287  (1st Cir.
                                  

1982), we held that individuals "who filed mixed petitions before

Rose issued  should  not be  penalized  for having  followed  the
    

procedure that prevailed at  the time."  That practice  permitted

the  court   to  rule  on  exhausted   claims,  while  dismissing

unexhausted claims,  because "it would be  indefensible to refuse

to consider a  meritorious claim  merely on the  grounds that  it

might eventually be mooted  by a favorable state court  ruling on

his  appeal of  unrelated  issues."   Miller,  536 F.2d  at  969.
                                            

Providing prompt relief to  individuals who filed mixed petitions

obviously  did not  contemplate  summarily  rejecting  subsequent

petitions.

          We followed the pre-Rose  procedure with respect to the
                                  

1979 Petition.  We  dismissed the merits of the  exhausted claims

and  reserved consideration  of  the unexhausted  claims.   Thus,

                               -5-

Watkins reasonably assumed that we would consider his unexhausted

claims  in a  subsequent  petition once  he  had exhausted  them.

Because  we considered the 1979 Petition  on the merits, however,

we  must use  it  as the  bench  mark for  the  abuse-of-the-writ

analysis.

          In   this   context,  McCleskey's   cause-and-prejudice
                                         

standard plainly requires the  dismissal of claims raised  in the

1990  Petition  that   Watkins  failed  to  raise  in   the  1979

Petition.4   To justify the  failure to raise  a claim, appellant

must demonstrate  that some  "external impediment, whether  it be

government  interference or the  reasonable unavailability of the

factual  basis for  the  claim, must  have  prevented [him]  from

raising the claim."  McCleskey, 111 S. Ct. at 1472.  Watkins also
                              

failed  to demonstrate that  he made  a "reasonable  and diligent

investigation aimed at including  all relevant claims and grounds

for relief in  the first federal habeas petition."   Id. at 1472.
                                                        

This test forms the cause prong of the McCleskey test and Watkins
                                                

failed  to meet  it.    Although  Watkins' counsel  asserted that

Watkins could meet both prongs at the hearing before the district

court on  the 1990 Petition, he never  explained how.  On appeal,

Watkins  did  not  raise the  argument.    We  conclude that  the

reasonable  doubt  and  second-degree murder  challenges  to  his

conviction  were available  to Watkins  at the  time of  the 1979

Petition and  that he  has shown  no cause  for failing to  raise

                    

4   Despite the age of this case there is no problem as McCleskey
                                                                 
applies retroactively.  Andiarena v. United States, 967 F.2d 715,
                                                  
717-18 (1st Cir. 1992).

                               -6-

them.

          Finally, Watkins' argues that even if the 1990 Petition

is an abuse, a "fundamental miscarriage of justice  would result"

from  refusing to  consider his  new claims.   This  exception to

McCleskey   is   narrow,  as   it   is   contemplated  only   for
         

"extraordinary instances when a constitutional violation probably

has caused the conviction of one innocent of the crime."   Id. at
                                                              

1470.    In  describing   this  exception,  the  McCleskey  court
                                                          

suggested that the petitioner  must supplement the constitutional

violation with  a "colorable showing of factual  innocence."  Id.
                                                                 

at 1471 (quoting Kuhlmann  v. Wilson, 477 U.S. 436,  454 (1986));
                                    

see also Wise v. Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992).  
                         

          Watkins'  case  falls  outside  this  narrow  exception

because he did not squarely raise the "fundamental miscarriage of

justice" issue before the  district court.  While he  claims that

the  argument  was  implicit  in  his Memorandum  in  Support  of

Petition  for Writ of Habeas Corpus, we find this insufficient in

light of the fact that Watkins did not argue the exception at the

hearing  before the district court  when it ruled  against him on

the basis of McCleskey.5  
                      

          "This circuit  religiously follows the rule that issues

not  presented to the district court cannot be raised on appeal."

Ouimette v. Moran,  942 F.2d 1, 12 (1st  Cir. 1991) (rule applied
                 

                    

5   We note that Watkins  also failed to object  to the allegedly
infirm  instruction  at  the  original trial.    Commonwealth  v.
                                                             
Watkins, Crim. Action No.  95-794, slip op. at 3-4  (Superior Ct.
       
July 7, 1989). 

                               -7-

in  habeas context); Knight v.  United States, 611  F.2d 918, 920
                                             

n.2 (1st Cir. 1979)  (rule applied in habeas  context).  Only  in

cases in which "a  gross miscarriage of justice" would  occur and

in  which  "the new  ground [is]  so  compelling as  to virtually

insure appellant's  success" can we consider  arguments that were

not raised below.  Hern ndez-Hern ndez v. United States, 904 F.2d
                                                       

758, 763 (1st Cir.  1990) (quoting Johnston v. Holiday  Inns, 595
                                                            

F.2d 890,  894 (1st Cir.  1979)).   To determine whether  a gross

miscarriage  of justice  would occur  if we  do not  consider the

McCleskey exception, we must look at appellant's claims.
         

          Watkins   first  challenges  the   trial  court's  jury

instructions on reasonable doubt.  He claims that four aspects of

the   instructions,   when    taken   together,   derogate    the

Commonwealth's  burden of proof.   First, the  trial court stated

that  reasonable doubt  was  not "foolish"  or "fanciful"  doubt.

Second,  it suggested  that reasonable  doubt was  something less

than  a "mathematical  or an  artificial  certainty."   Third, it

presented its  instruction on essential  elements of a  crime, as

opposed to collateral  issues, in a  confusing manner.   Finally,

the  trial court  stated that  "the average  layman's version  of

'reasonable doubt' would  come pretty  close to what  the law  in

much more technical language says."  

          While criminal defendants often  challenge instructions

on reasonable doubt, "our experience has been that even imperfect

formulations usually meet constitutional requirements when viewed

in  the context of the  entire charge."   Lanigan v. Maloney, 853
                                                            

                               -8-

F.2d 40, 45 (1st Cir. 1988), cert. denied, 488 U.S. 1007  (1989).
                                         

We  must "tolerate a reasonable range of expression, some or even

much of which may not  suit our fancy," unless we impose  pattern

jury instructions.  Bumpus v. Gunter, 635 F.2d 907, 910 (1st Cir.
                                    

1980), cert.  denied, 450 U.S.  1003 (1981).   In this  case, the
                    

trial  judge's instruction  on  reasonable doubt  were less  than

perfect.   They were confusing in  parts, but do not  rise to the

level of constitutional infirmity.  

          The trial  court's statement with respect  to "foolish"

or  "fanciful" doubt came close to the instruction we censured in

Dunn v. Perrin,  570 F.2d 21,  24 (1st  Cir.), cert. denied,  437
                                                           

U.S. 910 (1978).  In Dunn,  the trial court erred by shifting the
                         

burden to the  defendant.   It stated that  reasonable doubt  was

doubt  that could not "readily or easily [be] explained away, but

rather such  a strong  and abiding  conviction  as still  remains

after careful consideration of all the  facts and arguments . . .

."  Id.    In this case, the trial court did not shift the burden
       

to defendant.   It stated that reasonable doubt was "a doubt that

resides in the mind of a  reasonable man who is earnestly seeking

the truth.   It is not  a foolish doubt.   It  is not a  fanciful

doubt.  It is  not a doubt in the  mind of a juror who  is simply

seeking  an  excuse  to  acquit  a  defendant."    While  a  poor

formulation,  this instruction  essentially asked  the jurors  to

seriously pursue  the truth.   Appellant's  reliance  on Dunn  is
                                                             

misplaced.   

          With  respect to the  other errors alleged,  it is true

                               -9-

that the trial judge indicated that a mathematical certainty  was

not possible.  The  trial judge nonetheless exhorted the  jury to

be  as  certain  as  humanly  possible  and  instructed that  the

Commonwealth  was  required  to   prove  each  element  beyond  a

reasonable doubt, if in a  somewhat convoluted manner.   Finally,

the  introductory comment  that the  layman's version  is "pretty

close" to  the law's  technical definition, even  when considered

along  side  the other  disputed  verbal  formulations, does  not

prevent us from finding that the challenged aspects of the charge

did not  "so infect the entire  charge and trial as  to cause the

jury to evaluate petitioner's guilt or innocence under a standard

less  than 'beyond a reasonable doubt'."  Lanigan v. Maloney, 853
                                                            

F.2d 40, 48 n.7 (1st Cir. 1988) (quoting Bumpus, 635 F.2d at 909,
                                               

for standard  required to reverse state  conviction on reasonable

doubt  instruction).     The  trial   court  did  not   commit  a

constitutional  error in  its instructions  on reasonable  doubt.

Thus,  we do not find his  arguments "so compelling" as to insure

success and,  consequently, there has been  no "gross miscarriage

of justice."  Hern ndez-Hern ndez, 904 F.2d at 763.   
                                 

          Appellant also challenges the trial court's instruction

on the definition of  premeditated murder.  During deliberations,

the jury  requested further  instruction on  premeditated murder.

The trial judge answered their question by stating, 

            [p]remeditated  murder  as  distinguished
            from murder  in the  second degree is  if
            [sic]  it  is planned  beforehand,  or to
            give  you  an alternative  definition, if
            there  is a  definite decision  to commit
            the act followed by the commission of the

                               -10-

            act, that would be premeditation.

None of the  Massachusetts Supreme Judicial Court  cases cited by

appellant  undermines  this  charge.   The  charge  accords  with

Commonwealth v. Ruci,  409 Mass.  94, 96, 564  N.E.2d 1000,  1002
                    

(1991), which requires that defendant reflect on  a resolution to

kill  the victim,  and with  Commonwealth v. Callahan,  401 Mass.
                                                     

627, 633, 519 N.E.2d 245,  249 (1988), which states that  the act

not be so  spontaneous as  to prevent reflection.   Neither  case

mandates  that  specific words  be  used.   Moreover,  the  court

indicated  in  Callahan that  the  judge's  added statement  that
                       

premeditation  "excludes action which  is taken  so spontaneously

that there is no time to think," was appropriate only because the

judge   earlier  stated  that  premeditation  "may  occur  within

seconds."   The  trial judge  in  this case  did not  imply  that

premeditation  could be formed in seconds.  In this case, Watkins

argued with the victim in the hallway outside the apartment, went

to the  kitchen to get a knife, and returned to the hallway where

he fatally stabbed the victim.  Watkins had time to reflect.

          The jury focused on the critical distinction  necessary

to find guilt  beyond a reasonable  doubt of the  crime of  first

degree murder.   It chose to  convict Watkins.  Again,  we do not

find  Watkins'   arguments  compelling  and  discern   no  "gross

miscarriage of  justice."  Hern ndez-Hern ndez, 904  F.2d at 763.
                                              

Thus, we  are not required to considered the McCleskey exception.
                                                      

As a final matter, we note that Watkins has not made "a colorable

showing of  factual innocence," making the  likelihood of success

                               -11-

on the exception exceptionally slim.

          Because the district court properly  dismissed Watkins'

new arguments as an abuse of the writ, we affirm.

          Affirmed.
                  

                               -12-
