
USCA1 Opinion

	




          March 29, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1741                                   DAVID L. WELLS,                                Petitioner, Appellant,                                          v.                                    JOHN MARSHALL,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            David L. Wells on brief pro se.            ______________            Scott   Harshbarger,  Attorney  General,  and  William  J.  Meade,            ___________________                            __________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   We have  reviewed the record  and the                      __________            parties'  briefs  and  affirm  the dismissal  of  the  habeas            petition, filed pursuant  to 28 U.S.C.   2254,  of petitioner            David L. Wells.  We rely essentially on the reasons set forth            in the district court's  Memorandum and Order.  See  Wells v.                                                            ___  _____            Marshall,  885 F.Supp.  314  (D. Mass.  1995).   We  add  the            ________            following comments.                      1.  Petitioner is not excused from exhausting state            remedies  merely because he  claims that his  state trial was            unconstitutional  and   that  the  allegedly   altered  trial            transcript prevents  him from challenging  his conviction  in            any  state proceeding.  A  new superior court  judge has been            assigned  to   petitioner's  motion  for  a   new  trial  and            petitioner  has  presented  no  evidence  that  he  has  been            thwarted in  proceeding before  this judge.   Indeed,  at the            April 26, 1995 hearing, the judge stated that he was ready to            hear petitioner's claims and, when petitioner  indicated that            he would rather proceed in federal court,  left to petitioner            the  decision when to reactivate  the state action.   In this            situation,  it  hardly  can  be  said that  resort  to  state            remedies would be futile.   See Gagne v. Fair, 835 F.2d  6, 9                                        ___ _____    ____            (1st  Cir.   1987)  (unless  the  state   remedy  is  clearly            deficient,  resort to  the state process  will not  be deemed            futile).  Comity  therefore mandates that the  state be given            the first  opportunity to rule  on petitioner's claims.   See                                                                      ___            id.;  Layne v. Gunter, 559  F.2d 850, 851-52  (1st Cir. 1977)            ___   _____    ______                                         -3-            (where the state process was "revived" after petitioner filed            a  federal  habeas  petition  and  therefore   currently  was            available  to  him,  exhaustion   of  the  state  process  is            appropriate), cert. denied, 434 U.S. 1038 (1978).                          ____________                      2.    We do  not  see  what relevance  the  problem            petitioner  is  experiencing  with  his  vision  has  to  the            exhaustion question.  That is, petitioner would face the same            difficulties no  matter  in which  court  he proceeded.    If            petitioner  requires  accommodations   --  such  as  extended            deadlines for the filing of pleadings -- he can ask the state            court for such adjustments.                      3.  In  closing, we remind petitioner  that he must            present  to the  state court  all the  grounds for  relief he            intends to raise  in the federal court.  See  Gagne, 835 F.2d                                                     ___  _____            at 7 (in order to meet the exhaustion requirement, petitioner            "must  have fairly  presented  the substance  of his  federal            habeas  claim  to  the  state court  before  seeking  federal            review").                      Affirmed.  See Local Rule 27.1.                      ________   ___                                         -4-
