
USCA1 Opinion

	




          June 4, 1992          [NOT FOR PUBLICATION]                                 ___________________          No. 92-1072                                                GENE L. PERRY,                                      Plaintiff,                                          v.                               ABU HANIF ABDAL-KHALLAQ,                                      Defendant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Gene L. Perry on brief pro se.               _____________               Scott Harshbarger,  Attorney General and  Ladonna J. Hatton,               _________________                         _________________          Assistant Attorney General, on brief for appellee.                                  __________________                                 __________________                  Per Curiam.  The appellant, Gene L. Perry, was convicted                 __________            of  arson and first-degree murder in a Massachusetts court in            1980.   Perry  appealed his  conviction to  the Massachusetts            Supreme  Judicial Court  (SJC),  which ruled  that the  trial            court had omitted a necessary jury instruction concerning the            effect that  Perry's intoxication at  the time of  the murder            might have  had on  the jury's ability  to find  that he  had            acted with "extreme atrocity  and cruelty."  Extreme atrocity            and  cruelty   is   an  element   of   first-degree   murder;            consequently, the SJC reduced Perry's homicide conviction  to            second-degree murder.  Commonwealth  v. Perry, 385 Mass. 639,                                   ____________     _____            648-50 (1982).                 Since his direct appeal,  Perry has shuttled between the            Massachusetts  and federal  courts with  a series  of pro  se                                                                  _______            applications  for  post-conviction  relief.    He  filed  two            motions for a new  trial in the Massachusetts courts,  one in            1984 and  one in 1988; both  were denied.  He  has also filed            three petitions in federal court for a writ of habeas corpus.            The district court dismissed  the first two petitions because            each contained claims as to which Perry had not exhausted his            remedies in state court.   This appeal concerns the dismissal            of Perry's third habeas petition.                 The current  petition,  in Paragraphs  12A through  12J,            makes  ten  claims.   We affirm  the  dismissal of  the eight            claims  in   Paragraphs  12B,   and  12D  through   12J,  for                                         -2-            essentially the reasons stated in the district court's order.            With respect  to Paragraph  12B, we agree  with the  district            court that  dismissal was  in order  because Perry  failed to            allege  any facts  to support  a claim  that the  state trial            court violated  his constitutional rights when  it denied his            motion for a required finding of not guilty.  It is a rule of            long standing  in  this  circuit that  "[w]e  do  not  accept            'notice' pleading  in habeas  corpus proceedings."   Aubut v.                                                                 _____            Maine, 431 F.2d 688, 689  (1st Cir. 1970).  The rule  applies            _____            even to pro se  petitions.  See, e.g., Bernier  v. Moore, 441                    ______              _________  _______     _____            F.2d 395, 396 (1st Cir. 1971).                 With  respect to  Paragraphs 12D  through 12J,  we agree            with  the  district  court  that  Perry  is  barred  by   his            procedural default in state  court from bringing these claims            in federal  court.  An  adequate and  independent finding  of            procedural default by  a state court "will bar federal habeas            review of the federal claim, unless the habeas petitioner can            show  'cause'  for the  default  and 'prejudice  attributable            thereto,' or demonstrate that failure to consider the federal            claim will result in a 'fundamental miscarriage of justice.'"            Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted).            ______    ____                 In his second motion for a new trial, Perry asserted the            same seven  claims contained  in Paragraphs 12D  through 12J.            The  Superior Court judge who heard the motion refused to act            on  it, and Perry applied  to the Massachusetts Appeals Court                                         -3-            for  review.   The  Appeals  Court affirmed  the  decision to            reject  the  motion  outright,  ruling  that   under  settled            Massachusetts law the claims made  in the motion either "were            .  .  .  issues  which  were  available  for  review  on  the            defendant's  direct appeal, . .  . or were  matters which may            not be raised on a motion  for a new trial."  Commonwealth v.                                                          ____________            Perry,  No.  88-P-629   (Mass.App.Ct.  November  14,   1988).            _____            Therefore, the claims were waived.                 Although the  Appeals Court went on  to consider briefly            the  merits of Perry's motion (and to find nothing that might            entitle  him to  a new  trial), it  is clear  to us  that the            decision rested independently  on Perry's procedural default.            The Supreme  Court has said that the  procedural bar doctrine            applies even if  a state court reaches the merits  of a claim            in an  alternative  holding,  "as  long as  the  state  court            explicitly invokes a  state procedural bar rule as a separate            basis for decision."  Harris v. Reed, 489 U.S. at 264 n.10.                                    ______    ____                 We think  it equally clear that the procedural rule used            by  the Appeals  Court constituted  an "adequate"  ground for            decision, inasmuch  as the rule has  been "consistently [and]            regularly applied."  Dugger  v. Adams, 489 U.S. 401,  410 n.6                                 ______     _____            (1989).   Under Massachusetts law, "'a motion for a new trial            may  not be  used as  a vehicle  to compel  a trial  judge to            review and reconsider questions of law' on which  a defendant            has  had his  day  in an  appellate  court, or  forgone  that                                         -4-            opportunity."   Fogarty v.  Commonwealth, 406 Mass.  103, 107                            _______     ____________            (1989).     This   has  been   the  "unbroken   practice"  in            Massachusetts for  many years.   Commonwealth v.  McLaughlin,                                             ____________     __________            364  Mass.   211,  229   (1973)   (quoting  Commonwealth   v.                                                        ____________            Dascalakis,  246 Mass.  12,  24 (1923)).    It was  therefore            __________            appropriate for  the district court,  in the  absence of  any            showing of  "cause" or "prejudice," to  invoke the procedural            default  to bar Perry's  attempt to  resurrect his  claims in            federal court.                   Finally,  we  affirm  the  dismissal of  the  claims  in            Paragraphs  12A and  12C, though  for reasons  different from            those stated by the district court.  The district court found            that  Perry  had  not  "exhausted" his  state  remedies  with            respect to these  two claims,  see 28 U.S.C.    2254(b),  but                                           ___            ruled  that  it  could  nevertheless  consider  their  merits            pursuant  to Granberry  v. Greer,  481 U.S.  129 (1987).   We                         _________     _____            conclude that the claims were exhausted.                                     ____                 Under  28  U.S.C.    2254(c),  a  habeas petitioner  has            failed to exhaust his state remedies only if, with respect to            a particular federal claim,  "he has the right under  the law            of  the  state to  raise,  by  any available  procedure,  the                                               _________            question presented" (emphasis added).   If the federal habeas            court finds that  the petitioner has forfeited  review of the            claim  in state courts by virtue  of some procedural default,            then  there is no "available"  state procedure and the claim,                                         -5-            though  never  actually put  before the  state court,  can be            deemed  exhausted. See Engle v. Isaac, 456 U.S. 107, 125 n.28                               ___ _____    _____            (1982)  (since petitioners  could have  raised constitutional            challenge  at trial or on  direct appeal, "we  agree with the            lower courts  that state collateral relief  is unavailable to            respondents and,  therefore, that  they have  exhausted their            state remedies with  respect to this claim"); Harris v. Reed,                                                          ______    ____            489 U.S.  at 268 (1989) (O'Connor,  J., concurring); Carsetti                                                                 ________            v.  Maine, 932 F.2d 1007,  1011 (1st Cir.  1991) ("Without an                _____            available  remedy   in  state  court,   petitioner  has  thus            satisfied the exhaustion requirement").  This       principle            applies to the  case at hand.  Were Perry  now to seek relief            in  state court  for the  constitutional claims  contained in            Paragraphs  12A  and  12C,  the  Massachusetts  courts  would            declare him  in procedural default because  Perry could have,            but did not, raise  these claims in his two  previous motions            for  a  new trial.   Under  Mass. R.  Crim. P.  30(c)(2), any            grounds not raised  in a  prisoner's first motion  for a  new            trial "are waived unless the judge  in his discretion permits            them  to be  raised in  a subsequent  motion, or  unless such            grounds could not reasonably have been raised in the original            or amended motion."                 Nothing prevented  Perry  from raising  Paragraph  12A's            equal  protection argument in either of his two motions for a            new trial.  A  Massachusetts court might, it is  true, excuse                                         -6-            Perry's failure to raise the claim contained in Paragraph 12C            in his  first motion for a new trial because the claim "could            not reasonably have been raised"  when Perry filed the motion            in 1984.   It was not  until April 1985,  in Commonwealth  v.                                                         ____________            Henson,  394  Mass.  584,  593 (1985),  that  the  SJC  first            ______            suggested that  denying a criminal defendant  the opportunity            to   rely  on  intoxication  as   a  defense  might  raise  a            constitutional  due  process  issue.   However,  Perry  could            reasonably have raised the  issue in his second motion  for a            new  trial, filed in 1988, and the omission of the claim from            that  motion was  a procedural  default under  Rule 30(c)(2).            The claims, therefore, were exhausted.                 To  say that  the  inevitable prospect  of a  procedural            default in state court renders a claim exhausted, however, is            not to say that  this form of compliance with  the exhaustion            requirement opens the claim up to federal adjudication on the            merits.     To  the   contrary,  a  prisoner   who  would  be            "procedurally  barred from  raising a  federal constitutional            claim in state court is also barred from raising the claim in            a  federal habeas petition unless  he can show  cause for and            actual prejudice from  making the default."   Toles v. Jones,                                                          _____    _____            888 F.2d 95, 98-9 (11th Cir. 1989).  See also Teague v. Lane,                                                 ________ ______    ____            489 U.S. 288,  297-99 (1989);  Engle v. Isaac,  456 U.S.  107                                           _____    _____            (1982); Church  v. Sullivan, 942  F.2d 1501,  1507 n.5  (10th                    ______     ________            Cir. 1991); Wright v. Nix, 928 F.2d 270, 272 (8th Cir. 1991);                        ______    ___                                         -7-            Thigpen  v.  Thigpen, 926  F.2d  1003, 1010  n.17  (11th Cir.            _______      _______            1991);  Reese v. Peters, 926  F.2d 668, 671  (7th Cir. 1991);                    _____    ______            Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990).            ________    ________                 The record here  contains not even  a glimmer of  cause.            Because  he represented  himself in  the  Massachusetts post-            conviction proceedings,  Perry cannot  pass the buck  for the            default by claiming ineffective  assistance of counsel.1  Nor            does the record demonstrate or even hint at (1) the existence            of "some objective factor external to the defense" that might            have  impeded  Perry's efforts  to  comply  with the  state's            procedural  rules,  Murray  v.  Carrier, 477  U.S.  478,  488                                ______      _______            (1986),  or  (2) some  interference  by  officials that  made            compliance impracticable.  Id.   As noted above,  the factual                                       ___            and  legal bases for both  claims were evident  no later than            April 1985, three years before Perry filed his  second motion            for a new trial.2                 Affirmed.                 ________                                            ____________________            1.  The fact that Perry appears pro se here, and appeared pro                                            ______                    ___            se in  the proceedings on his  motions for a new  trial, does            __            not excuse him  from compliance with  the rigorous cause  and            prejudice standard.  See Barksdale v. Lane, 957 F.2d 379, 385                                 ___ _________    ____            n.12  (7th Cir. 1992); Alexander v. Dugger, 841 F.2d 371, 374                                   _________    ______            n.3  (11th  Cir.  1988);  Hughes  v.  Idaho  State  Board  of                                      ______      _______________________            Corrections, 800 F.2d 905, 908 (9th Cir. 1986).            ___________            2.  Because   the  cause   and   prejudice   requirement   is            conjunctive, we  need not  consider the latter  element where            the  former has not been satisfied.  Puleio v. Vose, 830 F.2d                                                 ______    ____            1197, 1202 (1st Cir. 1987).                                         -8-
